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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


REMEDIES 


AND 


REMEDIAL     RIGHTS 


BT 


THE  CIYIL  ACTION, 


ACCORDING   TO 


THE   REFORMED   AMERICAN   PROCEDURE. 


A   TREATISE 

ADAPTED   TO   USE   IN   ALL   THE   STATES   AND   TERRITORIES 
AVHERE   THAT   SYSTEM  PREVAILS. 


BY 


JOHN   NORTON   POMEROY,  LL.  D., 

AUTHOR   OF    "an  INTRODUCTION  TO   MUNICIPAL   LAW,"    "AN   INTRODUCTION 
TO   CONSTITUTIONAL  LAW,"    ETC.,   ETC. 


BOSTON: 
LITTLE,   BROWN,  AND   COMPANY. 

1876. 


T 


Entered  accorJing  to  Act  of  Congress,  in  tlie  year  1876,  by 

JOHN    NORTON    POMEROY, 

In  tlie  Office  of  the  Librarian  of  Congress,  at  Washington. 


Cambridge : 
Press  cf  John   Wilson  and  Son. 


TO 


AARON   J.   VANDERPOEL,  Esq., 

OF   THE   NEW   YORK    BAR, 

THIS   BOOK    IS   INSCRIBED    ALIKE   AS   A   TRIBUTE   TO   HIS   HIGH   PROFESSIONAL 

CHARACTER,    AND    AS   AN    EXPRESSION   OF   THE   AUTHOR'S 

PERSONAL   REGARD. 


/fC'JL. 


PREFACE. 


The  new  procedure  which  was  devised  by  the  codifiers  and 
inaugurated  by  the  Legislature  of  New  York,  in  the  year  1848, 
now  prevails  in  more  than  twenty  other  States  and  Territories  of 
this  country,  and  may,  therefore,  be  properly  termed  "  The  Re- 
formed American  System  of  Procedure."  After  a  most  careful 
consideration,  and  the  most  cautious  and  deliberate  examination 
by  a  commission  composed  of  the  ablest  judges  and  barristers,  it 
has  finally  been  accepted  in  its  essential  features  and  elements  by 
the  British  Parliament,  and  has  recently  displaced  the  time-hon- 
ored methods  of  the  common-law  and  the  equity  courts  in  Eng- 
land. This  fact  alone  maybe  regarded  as  decisive  of  its  intrinsic 
excellence,  as  conclusively  demonstrating  that  it  is  founded  upon 
natural  and  true  principles ;  that  it  embodies  rational  notions  in 
resj)ect  to  the  manner  of  conducting  judicial  controversies  be- 
tween private  litigants  ;  and  that,  in  its  conception  and  design,  it 
is  far  superior  to  the  artificial,  technical,  and  arbitrary  modes 
which  had  so  long  been  looked  upon  as  perfect  by  generations  of 
Enghsh  and  American  lawyers.  It  is  shown  in  the  Introductory 
Chapter  of  the  present  work  that  this  whole  course  of  reform  is 
but  a  repetition,  not  simply  in  a  general  outline,  but  even  in  the 
minute  details,  of  what  took  place  in  the  jurisprudence  of  Rome  ; 
so  that  the  modern  legislation  has,  in  this  respect,  merely  fol- 
lowed an  inevitable  law  of  progress,  which  always  works  out  the 
same  results  under  the  same  social  conditions  and  circumstances. 

Although  the  codes  which  have  been  enacted  in  the  various 
States  and  Territories  sometimes  differ  slightly  from  each  other 
in  respect  to  the  minor  measures  and  steps  of  practice,  and  al- 
though some  of  them,  in  reference  to  certain  special  matters,  have 


VI'  PREFACE. 

more  freely  carried  out  the  original  and  underlj'ing  theory  to  its 
logical  results,  and  have  by  distinct  provisions  expressly  abro- 
gated particular  dogmas  of  the  old  law,  which  in  other  States 
are  only  included  in  the  general  language  of  the  statute,  and  are 
thus  left  within  the  domain  of  judicial  construction,  yet  in  all  its 
essential  notions  and  fundamental  doctrines  the  reformed  proce- 
dure is  one  and  the  same  wherever  it  prevails,  either  in  the 
United  States  or  in  England.  The  "  Civil  Action"  which  it  has 
created  and  introduced  as  the  single  and  sufficient  instrument 
for  the  trial  of  all  judicial  controversies  between  private  suitors 
and  for  the  pursuit  of  all  judicial  remedies  is  the  same  in  con- 
ception, in  form,  and  in  substance,  possessing  the  same  charac- 
teristic features,  governed  by  the  same  elementary  rules,  and 
embodying  the  same  organic  principles.  How  completely  the 
reformed  system  is  severed  from  the  ancient  common-law  modes, 
how  entirely  it  abandons  all  the  arbitrary,  formal,  and  technical 
notions  which  were  their  very  essence  and  life,  and  how  firmly  it 
rests  upon  natural  and  necessary  facts  as  its  foundations,  is  shown 
in  the  Introductory  Chapter  and  in  other  portions  of  this  work. 
It  is  impossible,  therefore,  that  its  full  benefits  can  be  attained, 
and  that  full  scope  can  be  given  to  its  original  purpose,  until  the 
courts  and  the  profession  shall  accept  it  in  its  simplicity,  and 
sliall  cease  to  obstruct  its  efficient  operation  and  to  interrupt  its 
free  movements  by  antiquated  dogmas  and  rejected  doctrines 
drawn  from  the  system  which  it  has  thoroughly  overthrown  and 
supplanted. 

The  design  of  the  author  is  to  present  the  entire  remedial 
department  of  the  law  —  the  remedies  and  remedial  rights  — 
according  to  the  reformed  procedure.  The  volume  now  sub- 
mitted to  the  profession,  although  in  itself  a  complete  and  inde- 
pendent work,  accomplishes  a  part  of  this  full  purpose.  It  treats 
of  the  "  Civil  Action,"  which  is  the  central  fact  of  the  new  pro- 
cedure, and  which,  as  has  been  said,  is  everywhere  the  same  in 
all  its  distinctive  features  and  elements.  It  is  not  a  treatise  upon 
''  Practice  ;"  but  it  discusses  in  a  thoroughly  practical  manner 
those  features  and  elements  which  constitute  the  Civil  Action, 
and  which  differentiate  tliat  judicial  proceeding  from  the  action 


PREFACE.  Vll 

at  law  and  the  suit  in  equity.  The  discussions  and  conclusions 
which  it  contains  are  not  theoretical ;  they  are  everywhere  and 
always  based  upon  an  exhaustive  examination,  analysis,  and  com- 
parison of  the  decided  cases :  and  the  author  has  freely  drawn 
upon  the  judicial  decisions  of  the  States,  and  by  this  means 
presents  to  the  reader  a  body  of  authority  which  fully  indicates 
the  action  of  the  courts  and  their  theories  and  modes  of  interpre- 
tation throughout  the  commonwealths  in  which  the  sj^stem  pre- 
vails. Although  it  cannot  be  pretended  that  every  case  referring 
to  the  Civil  Action  has  been  cited,  —  in  fact,  many  of  them  are 
unworthy  of  citation,  since  they  are  the  reflections  of  crude  and 
incorrect  opinions  long  since  rejected,  while  others  are  the  mere 
repetitions  of  points  already  well  settled, — yet  it  is  believed 
that  none  are  omitted  which  contain  the  statement  of  a  new  and 
correct  principle.  The  author  has  endeavored  to  collect  all  the 
leading  cases  in  every  State,  —  all  those  which  have  been  finally 
accepted  as  authoritative,  and  which  represent  the  mature 
thought  and  convictions  of  the  judiciary  ;  and  in  no  other  work 
can  be  found  such  a  mass  of  judicial  opinion  gathered  from  courts 
of  the  various  States,  giving  a  construction  to  the  statutory  pro- 
visions which  describe  the  Civil  Action,  and  building  up  an  har- 
monious and  consistent  system  of  procedure  upon  the  reform 
legislation.  While  the  author  has  everywhere  endeavored  to 
reach  the  true  principles  of  interpretation,  and  to  extract  from 
the  cases  a  statement  of  universal  doctrines  which  shall  aid  in 
the  solution  of  all  future  questions,  and  has  not  scrupled  to 
express  his  own  views  and  opinions,  such  speculations  and  argu- 
ments are  always  plainly  indicated  and  represented  in  their  real 
character,  so  that  the  reader  need  never  confound  them  with  the 
results  of  actual  judicial  decision,  and  be  thus  led  to  accept  as 
settled  law  what  is  only  a  personal  conviction  or  suggestion  of 
the  author. 

While  the  work  is  thus  intended  to  be  a  practical  handbook 
for  the  lawyer,  as  an  aid  in  the  every-day  duties  of  his  profession, 
it  is  hoped  that  its  use  may  tend  to  bring  the  procedures  of  the 
different  States  into  closer  relations,  and  may  finally  produce 
the  perfect  identity  of  method  and  form  which  is  possible  from  the 


Vm  PREFACE. 

lec^islation  itself,  and  which  was,  beyond  doubt,  the  design  of  the 
several  legislatures  in  adopting  the  reform.  Such  an  identity  is 
entirely  practicable,  and  the  full  beneficial  results  of  the  change 
will  not  be  attained  until  it  is  reached.  In  every  State  there  has 
accumulated  a  growing  amount  of  judicial  interpretation  which 
would  be  of  the  greatest  assistance  to  the  Bench  and  Bar  of  all 
the  other  States  :  and  in  several  of  them  certain  special  rules  and 
methods  have  been  wrought  out  and  finally  established,  which 
need  only  to  be  known  in  order  to  be  universally  followed.  Such 
a  reform,  founded  on  the  nature  of  things,  and  not  upon  artificial 
and  arbitrary  assumptions,  never  goes  backward  ;  and  the  time 
will  surely  come  when  the  system  that  has  already  spread  so 
widely  will  be  introduced  into  every  commonwealth,  and  when 
the  distinction  between  legal  and  equitable  modes  of  pursuing 
remedies  will  disappear,  and  finally  be  forgotten. 

The  central  conception  of  the  reformed  procedure,  and  the 
one  from  which  all  the  elements  of  the  Civil  Action  are  developed, 
is  the  abolition  of  the  distinction  between  legal  and  equitable 
suits,  and  the  substitution  of  one  judicial  instrument,  by  which  both 
legal  and  equitable  remedies  may  be  obtained,  either  singly  or  in 
combination.  The  full  scope  and  eifect  of  this  grand  princijDle 
are  exhaustively  discussed  in  the  opening  chapter,  while  the 
necessary  limitations  upon  its  operation  which  inhere  in  our  judi- 
cial institutions  are  also  carefully  pointed  out.  Having  thus  laid 
the  foundation  upon  which  the  whole  superstructure  rests,  the 
remaining  parts  of  the  Civil  Action  are  examined  in  turn,  and  the 
practical  rules  which  control  their  use  are  minutely  explained  in 
the  light  of  judicial  authority.  These  general  features  are  the 
parties  to  the  Civil  Action,  plaintiff  and  defendant,  the  presenta- 
tion of  the  cause  of  action  by  the  plaintiff,  and  of  the  defence 
or  claim  of  affirmative  relief  by  the  defendant.  The  two  latter 
divisions  include,  among  other  important  particulars,  the  prin- 
ciples of  the  reformed  pleading  ;  the  scope  and  effect  of  the  gen- 
eral denial,  with  the  defences  which  may  be  proved  under  it ;  the 
nature  and  object  of  specific  denials ;  the  answer  of  new  matter, 
and  the  defences  which  must  be  specially  pleaded  ;  and  the  coun- 
terclaim.     The  discussion  of  these  special  topics,  being  of  the 


PREFACE.  IX 

greatest  practical  importance,  has  been  purposely  made  very  full 
and  minute.  An  attempt  has  also  been  made  to  obtain,  in  a  gen- 
eral and  complete  form,  the  true  meaning  of  certain  phrases 
found  in  all  the  codes,  upon  which  the  interpretation  of  most 
important  j)rovisions,  and  the  practical  rules  resulting  therefrom, 
so  closely  depend.  Among  the  statutory  phrases  are  "  the  cause 
of  action,"  "  the  subject  of  action,"  "  transaction,"  "  causes 
of  action  arising  out  of  the  same  transaction,"  and  the  like. 
If  the  author  has  succeeded  in  ascertaining  the  true  meaning  of 
these  and  similar  expressions,  and  the  legislative  intent  in  their 
use,  he  is  confident  that  he  will  have  rendered  a  substantial  aid 
to  the  profession,  and  even  to  the  courts,  in  the  difficult  work  of 
statutory  interpretation.  The  treatise,  as  a  whole,  if  its  purpose 
has  been  properly  carried  out,  Avill  be  a  j^i'actical  handbook, 
adapted  to  the  use  of  the  profession  in  every  State  and  Territory 
where  the  reformed  procedure  prevails.  It  is  also  designed  as  a 
text-book  for  students,  whether  in  offices  or  in  law  schools  ;  and  to 
that  end  frequent  reference  has  been  made  to  the  common-law  and 
equity  systems  of  procedure,  in  explanation  of  their  more  general 
doctrines  and  principles,  and  in  comparing  them  with  those  which 
have  been  substituted  in  their  place.  If  its  reception  by  the  Bar 
shall  be  favorable,  the  author's  original  design  will  be  completed 
by  a  second,  but  entirely  distinct  and  independent,  volume,  which 
will  treat  of  the  remedies  and  remedial  rights  that  may  be  ob- 
tained and  enforced  by  means  of  the  Civil  Action,  their  nature 
and  classification,  and  the  particular  rules  and  doctrines  wliich 
regulate  the  employment  of  the  action  in  their  pursuit. 

JOHN  NORTON   POMEHOY. 
Rochester,  N.Y.,  December,  1875. 


TABLE    OF    CONTENTS. 


INTRODUCTORY   CHAPTER. 

Section. 
Remedies  defined 1-4 

SECTION    FIRST. 

The  Remedial  System  prior  to  the  Modern  Reforms. 

The  prevalence  of  technical  forms 5 

I.   The  Universal  Principle  of  Legal  Developmeni  in  respect  to  Remedies 

and  Remedial  Bights. 

Use  of  forms  ;  fictions  ;  equity  ;  and  legislation 6-10 

II.   The  Workings  of  this  Principle  in  the  Roman  Law. 
Early  actions  ;  jurisdiction  of  the  prtetors  ;  formulae 11-14 

III.   The  Workings  of  this  Principle  in  the  English  Law. 

Common-law  actions  described 15-21 

Origin  and  growth  of  equity 22 

Resemblance  betweet^  the  English  and  the  Roman  laws 23 

Effect  of  the  use  of  actions  upon  the  law 24 

SECTION    SECOND. 

Remedies   and  Remedial  Rights  prior  to  the   Modern   Reform 

IN  Procedure. 

The  practical  mode  of  classification  under  the  former  system      ....     25-27 

SECTION    THIRD. 

Remedies   and   Remedial  Rights   under   the    Reformed   Ameri- 
can Procedure. 

I.    The  Reformatory  Ijcgislation. 
Fundamental  principles  of  the  new  procedure 28-30 

II.   The  General  Nature  of  the  Cicil  Action. 

Essential  features  and  principles  of  the  civil  action  described     ....     31-41 
Plan  and  divisions  of  this  work 42,  13 


XU  TABLE   OF    CONTENTS. 


PART    FIRST. 

THE  CIVIL  ACTION  ACCORDING  TO  THE  AMERICAN 
SYSTEM  OF  PROCEDURE:  ITS  ESSENTIAL  PRINCIPLES 
AND   FEATURES. 


CHAPTER    FIRST. 

The  Principle  of  Unity  in  all  Judicial  Proceedings ;  AhoUiion  of  the  Dis- 
tinctions betiveen  Actions  at  Law  and  Suits  in  Equity,  and  of  the  Com- 
mon-Laio  Forms  of  Action  ;  Adoption  of  a  Single  Cicil  Action  for  all 
Purposes. 

Statutory  provisions 44 


SECTION  FIRST. 

A   Theoretical  Unity   in   Procedure  ;    or,  The   Theory  of  an 
Absolute  Unity  of  Legal  and  Equitable  Actions. 

The  nature  of  "equity" 45-53 

Etjuitable  primary  rights  and  remedies  compared  with  legal      ....     46-52 
Theory  of  a  complete  union  of  legal  and  equitable  actions 54-64 


SECTION    SECOND. 

The  General  Principles  in  respect  to  a  Union  of  Legal  and 
Equitable  Methods  as  adopted  by  the  Cour'ts  :  how  far 
such  a  Union  has  been  effected  by  a  Judicial  Interpretation 
OF  THE  Codes. 

Statement  of  the  question  to  be  discussed 65 

Restrictive  system  of  interpretation  advocated  by  certain  judges  ...  66 

Liberal  and  correct  system  established  by  the  courts 67-73 

This  system  as  a])plied  to  pleading 74,  75 


SECTION    THIRD. 

The    Combination  by    the   Plaintiff    of   Legal  and   Equitable 
Primary  Rights  and  Remedies  in  one  Action. 

General  nature  of  such  a  union .  76,  77 

The  various  cases  of  legal  and  equitable  causes  of  action  and  remedies 

united  in  the  same  suit,  stated  and  illustrated 78-85 

Mode  of  trial  of  legal  and  equitable  issues  when  thus  united     ....  86 


TABLE   OF   CONTENTS.  XlU 


SECTIOX  FOURTH. 

Equitable    Defences    to    Actions    brought    to    obtain     Legal 

Remedies. 

Former  mode  of  using  an  equitable  right  to  defeat  a  legal  action    ...  37 
Nature   of  an  equitable  defence ;  whether  it  must  entitle  defendant  to 

affirmative  relief 88-91 

Examples  of  equitable  defences 92-97 


SECTION   FIFTH. 

A  Legal   Remedy  obtained  upon  an  Equitable   Ownership  or 
Equitable  Primary  Right. 

Whether  the  owner  of  an  equitable  estate  in  land  can  ever  maintain  a 

legal  action  to  recover  possession,  discussed 98-103 

Actions  between  partners,  whether  the  former  rule  has  been  changed    .  104 

Examples  of  other  actions ' 105 

Summary  of  the  foregoing  discussion 106 


SECTION  SIXTH. 

The  Nature  of  Civil  Actions,  and  the  Essextial  Differences 

between  them. 

Essential  distinctions  still  existing  between  actions  ;  in  what  features 

these  distinctions  are  found. 107-111 


■   CHAPTER    SECOND. 

The  Parties  to  the  Civil  Action. 

SECTION    FIRST. 

Statutory  Provisions. 

Legal  and  equitable  theories  of  parties  contrasted  ....  .     .  112 

Provisions  of  the  codes,  and  the  general  principles  established  by  them,     113-123 

SECTION  SECOND. 

The  Real  Party  in  Interest  to  be  made  Plaintiff. 

Provision  of  the  codes 12-4 

Discussion  of  the  doctrine  that  the  assignee  of  a  thing  in  action  should 

sue  in  his  own  name 125-138 

The  person  to  whom  a  promise  is  made  for  the  benefit  of  another  may 

sue  in  his  own  name 139 


XIV  TABLE    OF   CONTENTS. 

Other  examples  of  real  parties  in  interest 140,  141 

Suits  by  tax-payers  aj^ainst  local  officials,  &c. ;  and  by  the  people  .     .  142 

,,      grantee  of  land  in  name  of  the  grantor 143 

SECTION    THIRD. 
The  Assignability  of  Things  in  Action. 

The  principle  of  survivorship  stated  and  discussed 144-146 

What  things  in  action  are  assignable  ;  examples 147-1.")2 

Things  in  action  not  assignable 152,  153 

SECTION  FOURTH. 

Effect  op  an  Assignment  of  a  Thing  in  Action  upon  the  De- 
fences THERETO. 

Provision  of  the  codes 154 

Interpretation  of  this  provision ;  equities  and  defences  in  favor  of  the 

debtor 1.55-157 

Equities   between  assignors  and  assignees ;   general  discussion  of  the 

doctrine 158-162 

When   defendant  can  set  up  a  claim  against  assignor  as  a  set-off  or 

other  defence  to  the  assignee 163-170 

SECTION  FIFTH. 
When  a  Trustee  of  an  Express  Trust  may  sue. 

"  Trustee  of  an  express  trust "  defined 171-174 

Suits  by  persons  "  by  whom,  &c.,  a  contract  is  made  for  the  benefit  of 

another" 175-177 

Suits  by  other  trustees 178 

,,      public  officers,  &c. ;   by   "persons  expressly   authorized  by 

statute" ' '.  179,180 

,,      executors  or  administi'ators ;  special  law  of  California  .     .     .  181 

,,      guardians  of  infants  ;  of  lunatics,  &c 182 

SECTION    SIXTH. 
Who  may  be  joined  as  Plaintiffs. 

Provisions  of  the  codes 183 

Common-law  rules  as  to  joinder  of  plaintiffs  ;  joint  right 184-193 

Fundamental  principles  of  the  codes  as  shown  by  their  language     .     .  194-200 

General  theory  of  interpretation  established  by  the  courts     ....  201-205 

How  questions  as  to  misjoinder  or  nonjoinder  of  plaintiffs  are  raised    .  206-216 

Bides  as  to  Plaintiff's  in  Particular  Classes  of  Cases. 

Divisions  of  the  subject 217 

First.    Union  or  Separation  of  Plaintiffs  in  Legal  Actions. 
I.  Actions  by  owners  in  common,  or  joint-owners  of  land     .     .     .     218-220 
II.  Actions  by  joint-owners  of  chattels 221-225 


TABLE    OF   CONTENTS.  XV 

III.  Actions  by  persons  having  joint  rights  arising  from  contract  .      .  226-228 

IV.  Actions  by  persons  having  several  rights  arising  from  contract    .  229 

V.  Actions  by  persons  having  joint  rights  arising  from  personal  torts,  2.30 

VI.  Actions  by  persons  having  several  rights  arising  from  personal 

torts 231 

VII.  Actions  in  special  cases 232,  233 

Second.    Actions  by  and  between  Husband  and  Wife. 

Statutory  provisions  in  various  States 234-236 

Interpretation  :  cases  discussed  in  which  a  wife  may  sue  alone,  or  with 

her  husband  ;  when  she  may  sue  her  husband 237-246 

Third.     Equitable  Actions. 

Doctrines  and  rules  as  to  plaintiffs  in  equitable  actions  fully  discussed,  247-270 

SECTION    SEVENTH. 

Who  may  be  joined  as  Defendants. 

Provisions  of  the  codes  :  divisions  of  the  subject 271,272 

Common-law  rules  as  to  the  joinder  of  defendants 273-283 

General  principles  of  the  reformed  procedure 284-286 

How  questions  of  misjoinder  and  nonjoinder  are  to  be  raised      .     .     .  287-292 

Effect  of  a  nonjoinder  ;  bringing  in  the  necessary  parties 293 

First.    Fades  as  to  Defendants  in  Legal  Actions. 

I.  In  actions  against  owners  or  occupants  of  land .  294-296 

II.  In  actions  against  owners  or  possessors  of  chattels 297,298 

III.  In  actions  upon  contract,  joint  liability 299-304 

IV.  In  actions  upon  contract,  joint  and  several  liability 305 

V.  In  actions  upon  contract,  several  liability 306 

VI.  In  actions  for  torts 307-314 

VII.  In  actions  in  settlement  of  decedents' estates 315 

VIII.  In  special  actions        316,  317 

Second.     Actions  against  Husband  and  Wife. 

General  nature  of  the  modern  legislation 318,  319 

Discussion  of  cases  when  wife  may  be  sued  alone ;  when  sued  with  her 

husband   320-328 

Third.     Equitable  Actions. 

I.  General  principles 329-332 

II.  Actions  to  foreclose  mortgages 333-345 

III.  Creditors'  actions 346-350 

ly.  Actions  relating  to  decedents'  estates 351-355 

V.  Actions  in  reference  to  trusts 356-359 

VI.  Actions  against  corporations  and  stockholders ;    and  between 

partners 360-365 

VII.  Actions  for  a  specific  performance 366-368 

VIII.  Actions  to  quiet  titles 369-372 


XVI  TABLE   OP   CONTENTS. 

IX.  Actions  for  a  partition 373-377 

X.  Actions  for  miscellaneous  objects  ;  partnership  matters  and  ac- 
counting; rescission;  enforcement  of  Hens  ;  contrihulion  ;  by 
tax-payers ;  to  redeem 378-387 

SECTION  EIGHTH. 

When  one  Person  may  sue  or  be  sued  on  Behalf  of  all  the  Persons 

interested. 

Provisions  of  the  codes 388 

Their  interpretation,  general  scope  and  meaning 389-393 

Cases  in  which  such  a  representative  action  may  be  brought ....  394,  395 
Rights  of  the  persons  represented ;  how  they  are  affected  by  the  de- 
cree, &c 396-401 

SECTION  NINTH. 

Persons  severally  Liable  on  the  Same  Instrument. 

Provisions  of  the  codes 402,  403 

Their  interpretation 404-406 

Discussion  of  cases  within  the  provision,  and  of  rules  resulting  from  it,     407-410 

SECTION   TENTH. 

Bringing  in  New  Parties  ;  Intervention. 

Statutory  provisions 411-413 

Proceedings  provided  for  by  the  codes 414-417 

I.   Bringing  in  additional  parties  ;  examples 418-422 

II.  Intervention,  or  the  coming  in  of  third  persons  on  their  own  mo- 
tion, as  found  in  the  codes  generally 423-423 

III.  Iowa  and  California  system  of  intervention 420-431 


CHAPTER   THIRD. 

The  Affirmative    Subject- Matter  of  the  Action  :   the  Formal  Statement  of  the 
Cause  of  Action  hy  the  Plaintiff. 

SECTION    FIRST. 

The  Statutory  Provisions. 

Provisions  of  the  codes 432-435 

Divisions  of  the  subject      .     .     .     .^ 436 

SECTION   SECOND. 
Joinder  of  Causes  of  Action. 

Divisions  of  the  section 437 

I.  Statutory  provisions 438-441 


TABLE   OP    CONTENTS.  XVll 

II.   The  forms  and  modes  in  which  a  misjoinder  may  occur ;  and  the 

manner  in  which  it  must  be  objected  to  and  corrected    .     .     .     442-451 

III.  Meaning  of  the  term   "  cause   of  action  ;  "  when    one   cause   of 

action  only  is  stated,  although  several  different  kinds  of  relief 

are  demanded 452-461 

IV.  The  joinder  of  causes  of  action  arising  out  of  the  same  transac- 

tion ;  or  transactions  connected  with  the  same  subject  of 
action;  legal  meaning  of  the  terms  "  transaction,"  and  "  sub- 
ject  of  action " 462-478 

V.  Instances  in  Avhich  the  proper  joinder  of  causes  of  action  is  con- 

nected with  the  proper  joinder  of  defendants  ;  discussion  of  the 
provision  that  all  tlie  causes  of  action  must  affect  all  the  parties,     479-490 

VI.  Instances  in  which  all  the  causes  of  action  are  against  a  single 

defendant,  or  against  all  the  defendants  alike 491-505 

SECTION  THIRD. 

The  General  Principles  of  Pleading. 

The  ancient  types  of  pleading ;  by  allegation ;  equitable,  and  common- 
law,  described 506-512 

The  reformed  pleading;  on  what  based;  extent  of  its  application  .     .  513-516 

The  fundamental  rules  stated 517 

"  Cause  of  action  "  defined  ;  distinction  between  legal  and  equitable; 

elements  which  enter  into  the  cause  of  action 518-529 

Foregoing  doctrines  illustrated  by  decided  cases 530-532 

Examples  of  sufficient  and  insufficient  allegations .  533-536 

Mode  of  alleging  an  implied  promise,  discussed 537-541 

Use  of  the  common  counts,  discussed 542-544 

Further  divisions  of  the  subject 545 

Liberal  construction  of  pleadings 546,  547 

I.  Insufficient,    imperfect,   &c.,   allegations;    how    objected  to   and 

correqted 548-550 

II.  Redundant  and  irrelevant 551,552 

III.  The  cause  of  action  or  defence  proved  must  correspond  with  that 

alleged  ;  actions  ex  contractu  and  ex  delicto 553-564 

Amendments  of  pleadings 565,  566 

Election  between  actions  for  tort,  and  those  on  contract 567-573 

SECTION   FOURTH. 

The  Form  of  the  Complaint  or  Petition. 

How  separate  causes  of  action  should  be  stated 574-576 

Joint  demurrers  and  answers,  effect  of 577 

Allegations  admitted  by  a  failure  to  deny 578 

Defects  in  complaint  or  petition  when  supplied  by  the  answer    .     .     .  579 

Prayer  for  relief,  effect  .of 580 


XVIU  TABLE  OF  CONTENTS. 


CHAPTER  FOURTH. 


The  Defensive  Suhjed-Matler  of  (he  Action;  the  Formal  Presentation  of  Ids 
Defence,  or  his  Claim  for  AJJirmative  Relief,  by  the  Defendant. 


SECTIOX   FIRST. 

Statutory  Puovisions. 

Provisions  of  tlie  codes,  arranged  and  classified 581-590 

Divisions  of  tliis  chapter 691 


SECTION   SECOND. 

General  Requisites  of  an  Answer  ;  General  Rules  Appli- 
cable TO  all  Answers. 

Kinds  of  defences  ;  questions  of  form  and  of  substance  concerning  them,  592-595 

Defective  answers,  mode  of  cori'ecting  them 596-605 

Joint  answers  ;  demurrers  to  entire  answers 606 

Partial  defences,  how  pleaded 607-609 


SECTION  THIRD. 
The  Defence  of  Denials. 

Kinds  of  denials  described  ;  divisions  of  the  subject 610-612 

I.  External  form  of  denials  general  or  specific 613 

II.  Nature  and  object  of  specific  denials 614-G16 

III.  Allegations  admitted  by  a  failure  to  deny 617 

IV.  Denials  In  the  form  of  a  negative  pregnant 618-023 

V.  Argumentative  denials  ;  specific  defences  equivalent  to  the  gen- 

eral denial 624-632 

VI.  General  denials  of  all  allegations  not  otherwise  admitted,  «&c.    .  633-636 
VII.   Allegations  of  issuable  facts  not  conclusions  of  law  to  be  denied  .  637-639 

VIII.  J)enials  of  knowledge  or  information,  &c 640,641 

IX.   Issues  raised  by  denials,  and  what  may  be  proved  under  them  .  642-682 

General  statement  of  the  questions  involved 642-644 

"  General  issues"  at  the  conmion  law  stated  and  discussed  .     .  645-656 
General  nature  and  object  of  the  "  general  denial  ;"  what  issues 

it  raises 657-669 

General  nature  of  tlie  defences  admis.-ible  under  it      ....  670-673 

Particular  defences  which  have  been  held  admissible   ....  674-682 

X.  Some  special  statutory  rules  concerning  the  general  denial  .     .  683-685 


TABLE    OF    CONTENTS.  XIX 

SECTION   FOURTH. 

The  Defence  of  New  Matter. 

Divisions  of  the  subject 686 

I.  How  defences  of  new  matter  should  be  pleaded 687-689 

n.  General   nature    of  new  matter  ;  defences    in  mitigation  and  in 

abatement 690-698 

III.  Particular  defences  held  to  be  new  matter 699-714 

SECTION  FIFTH. 

Union  of  Defences  in  the  Same  Answer. 

Divisions  of  the  subject,  &c 715 

I.  How  the  separate  defences  should  be  stated 716-720 

II.  What  kind  of  defences  may  be  joined  ;  in  abatement  and  in  bar  ; 

inconsistent  defences 720-725 

SECTION   SIXTH. 

Counterclaim,  Cross-Complaint,  and  Cross-Demand. 

Classification  and  divisions  of  the  subject 726,727 

Cross-demands  in  the  former  procedure,  set-off,  recoupment      .     .     .  728-733 
I.  General  description  of  the  counterclaim  ;  its  nature,  objects,  and 

uses 734-748 

II.  The  parties  in  their  relations  with  the  counterclaim 749-762 

1.  The  defendant:  must  be  a  demand  in  favor  of  the  defendant 

who  pleads  it 749-751 

2.  The  i)laintifir:  must  in  general  be  a  demand  against  the  plain- 

tiff or  all  the  plaintiffs 752-754 

3.  When  it  may  be  in  favor  of  one  or  more  of  several  defendants, 

and  against  one  or  more  of  several  plaintiffs 755-762 

III.  The  subject-matter  of  the  counterclaim,  or  the  nature  of  the  causes 

of  action  which  may  be  pleaded 763-803 

A.  Whether  it  may  be  an  equitable  cause  of  action 764-767 

B.  The  particular  questions  arising  under  the  Erst  clause  of  the 

statutory  definition 768-794 

General  principles  of  construction 769-776 

I.  Where  the  counterclaim  arises  out  of  the  contract  set 

forth  in  the  complaint  or  petition 777-780 

II.   Where  it  arises  out  of  the  transaction  set  forth  in  the 

complaint  or  petition 781-792 

III.   Where  it  is  connected  with  the  subject  of  the  action  ,      .     793,  794 

C.  Counterclaims  embraced  within  the  second  subdivision  of  the 

statutory  definition,  and  set-offs 795-803 

IV.  Some  miscellaneous  provisions  in  relation  to  counterclaims      .     .     804,  805 
Cross-complaints 806-808 


TABLE    OF   CASES   CITED. 


[the  references  are  to  the  pages.] 


Abadie  v.  Carillo,  32  Cal.  172 
Abbe  V.  Clarke,  31  Barb.  238 


583 
247,  733 


Abbot  V.  Chapman,  2  Lev.  81  689 

Abeel  v.  Van  Gelder,  3(3  N.  Y.  513      U5 
Abendroth   v.    Boardley,    27    Wise. 

555  626 

Aberaman  Iron   Co.  v.  Wickens,  L. 

R.  4  Ch.  App.  101  311 

Ackley  v.  Tarbox,  31  N.  Y.  564     250,  285 
Aekroyd  v.  Briggs,  14  W.  E.  25  300 

Adair  v.  New  Eiver  Co.,  11  Ves.  429 

416,  433,  436 
Adams  v.  Bissell,  28  Barb.  382     503,  510 
V.  Curtis,  4  Lans.  164  286 

V.  Farr,  5  N.  Y.  S.  C.  59  277 

V.  Hall,  2  Vt.  9  329 

V.  HoUey,  12  How.  Pr.  326      583 
V.  Honness,  62  Barb.  326 


V.  Rodarmel,  19  Ind.  339 


285, 
369 
196, 
199 
283 
743 


V.  Sater,  19  Ind.  418 

V.  Trigg,  37  Mo.  141 
Adams  Ex.  Co.  v.  Darnell,  31  Ind. 

20  660,  670,  698,  706 

Adams  Ex.  Co.  v.  Hill,  43  Ind.  157  711 

Adkins  v.  Adkins,  48  Ind.  12  654 

Agar  V.  Fairfax,  17  Ves.  542  420 

Agard  v.  Valencia,  39  Cal.  292  412 

Agate  V.  King,  17  Abb.  Pr.  159  764 

Ahern  v.  Collins,  39  Mo.  145  547 

Aiken  v.  Bnien,  21  Ind.  137  628 

Ainsley  v.  Mead,  3  Lans.  116  370 

Ainslie  v.  Boynton,  2  Barb.  258  187 

Ainsworth  u.'Bowen,  9  Wise.  348  793, 


Akerly  v.  Vilas,  21  Wise. 


804,  807 

793,  813, 

821 


Aleix  V.  Derbigny,  22  La.  An.  385      465 
Alexander,  lie,  37  Iowa,  454  286 

V.  Barker,  2  Tyr.  140        224 
V.  Cana,  1  DeG.  &  Sm. 

415  415 

V.  Gaar,  15  Ired.  89  247 


Alexander  v.  Jacoby,   23    Oliio   St. 

358  268,  272 

Quigley,  2  Duv.  300      397 


724 
751 

153,  159 

248,  250 

218 

357,  448 
365 
309 
163 
94,  583 
654,  670, 
809 
346 


Alford  V.  Barnum,  45  Cal.  482 
Allaire  v.  Whitney,  1  N.  Y.  305 
Allen  V.  Brown,  44  N.  Y.  228 
V.  Buflfiilo,  38  N.  Y.  280 
V.  Fosgate,  11   How.    Pr. 

V.  Jerauld,  31  Ind.  372 
V.  Knight,  5  Hare,  272 
V.  Miller,  11  Ohio  St.  374 
V.  Patterson,  7  N.  Y.  476 
V.  Randolph,  48  Ind.  496 

V.  Ransom,  44  Mo.  263 

V.  Shackleton,  15  Ohio  St.  145 

766,  813 

V.  Smith,  16  N.  Y.  415  410 

V.  Tliomas,  3  Mete.  198       165,  166 

Allis  V.  Leonard,  46  N.  Y.  688     659,  673 

V.  Nanson,  41  Ind.  154  722 

Allison  V.  Louisville,    &c.    R.   R.,    9 

Bush,  247  172 

V.  Weller,  6  N.  Y.  S.  C.  291     397 

Allred  v.  Bray,  41  Mo.  484  358 

Alnutt  V.  Leper,  48  Mo.  319  338,  340 

Althouse  V.   Rice,   4  E.  D.   Smith, 

347  727 

Alvey  V.  Wilson,  9  Kans.  401  349 

Alvord  V.  Essner,  45  Ind.  156  654 

Anituerman     v.     Crosby,     26     Ind. 

451  699 

Anderson  v.  Case,  28  Wise.  505         605, 

609,  613 
V.  Hill,  53  Barb.  238  367, 

485,  500,  511 
V.  Martindale,  1  East,  497 

224  227 
V.  Nicholas,  28  N.  Y.  600 

188, 189 
V.  Sutton,  2  Duv.  480  802 

V.  Watson,  3  Mete.  (Ky.) 

509  221 

Andrews  v.  Bond,  16  Barb.  633    692,  707 


XXll 


TABLE   OF   CASES   CITED. 


Andrews  v.  Brown,  21  Ala.  437  305 

V.  Gillespie,  47  N.  Y.  487 

116,  187,  410. 
785 
V.  McDaniel,  68  N.  C.  885 

158,161 
V.  Mokelumne  Hill  Co.,  7 
Cal.  330  244,  247,  266, 

270 
V.  Pratt,  44  Cal.  809 
Annett  v.  Kerr,  28  How.  Pr.  324 
Anonymous, 3  Atk.  572 

8  How.  Pr.  434 
3  Swanst.  139 
-  1  Vern.  261 
1  Yes.  29 
Anson  v.  Anson,  20  Iowa,  55 


172 

214 

314 

721 

299 

402 

521 

884,  892, 

395,  429 

714 

892,  394 


r.  Dwight,  18  Iowa,  241 
Anthony  v.  Nye,  30  Cal.  401 

V.  Stinson,  4  Kans.  211         819 
Antisdel  v.  Chicago,  &c.  R.  R.,  26 

Wise.  145  ^"i'^,  595 

Ardry's   Wife  v.  Ardry,  16   Louis 

2G4 
Arendell    v.    Blackwell,    Dev.    Eq 

354 
Arguello  v.  Edinger,  10  Cal.  150 
Armine  v.  Spencer,  4  Wend.  406 
Armstrong  u.  Armstrong,     27     Ind 
186 
V.  Hall,  17  How.  Pr.  76 
V.  Hinds,  8  Minn.  254 


464 

806 
117 

227 


V.  Nichols,  82  Ind.  408 
V.  Vroman,      11     Minn. 
220 
Arnold  v.  Bainbrigge,  2  DeG.  F.  & 
J.  92  304, 

V.  Dimon,  4  Sandf.  680 
V.    Sutlblk   Bank,    27    Barb. 
424 
Ashbv  t'.  Winston,  26  Mo.  210 
Ashley  v.  Marshall,  29  N.  Y.  494 
Askins  v.  Hearns,  3  Abb.  Pr.  184 


787 
531 
509, 
525 
372 


214 

893 
743 

357 
484 
814 
791, 
811 
585 
743 


Atkinson  v.  Collins,  9  Abb.  Pr.  353 
Atteberry  v.  Powell,  29  Mo.  429 
Atty.-Gen.  v.   Mayor,  &c.,  3  Duer, 
119 
V.  Stephens,  1    K.   &  J. 

724 
V.  Wynne,  Mos.  126 
Atwater  v.  Schenck,  9  Wise.  160 
Aucker  v.  Adams,  23  Ohio  St.  543 
Audslcy  V.  Horn,  26  Beav.  195     304,  393 
Auld  r.  Butcher,  2  Kans.  135  743 

Austin  v.  Munro,  47  N.  Y.  360     517,  531 
V.  Kawdon,  44  N.  Y.  63     606,  612 
Aylcsworth  v.  Brown,  31  Ind.  270       849 
Ayrault   v.   Pacific   Bank,   6    Kobt 

337 
Ayres  v.  Covill,  18  Barb.  264 

V.  Lawrence,  63  IJarb.  454 
V.  O'Earrell,  4  Kobt.  668 


455 

300 
298 
817 
038 


180 
680 
172 
808 


B. 


B V.  Walford,  4  Buss.  372 

Babbett  v.  Young,  51  Barb.  466 
Backus  V.  Clark,  1  Kans.  303 
Badger  v.  Benedict,  4  Abb.  Pr.  176 
Badgley  v.  Decker,  44  Barb.  577    21 
Baggott  V.  Boulger,  2  Duer,  160 
Bagsiiaw  r.  Eastern  Union  II.  Co.,  7 

Hare,  114 
Bailey  v.  Bergen,  4  N.  Y.  Sup.  Ct. 
642 
V.  Inglee,  2  Paisre,  278 
V.  Myrick,  36  Me.  50         303, 
Bainbridge  v.  Burton,  2  Beav.  539 
Baird  v.  Morford,  29  Iowa,  531     742, 
Baken  v.  Harder,  6  N.  Y.  S.  C.  440 
Baker  v.  Bailev,  16  Barb.  54 

V.  Bartol,  7  Cal.  551  170, 

V.  Connell,  1  Daly,  469 

V.  Jewell,  6  Mass.  460 

r.  Kistler,  13  Ind.63  660, 

V.  Kiley,  16  Ind.  479 

V.   Davenport,    7    La.   An. 


Baldree 

587 
Baldwin  v.  Martin,  14  Abb.  Pr.  n.  s. 


U.  S.  Tel.  Co.,  54  Barb. 
367, 


Baldwin  v 

505 
Ball  V.  Bennett,  21  Ind.  427 
Ballard  v.  Burgett,  40  N.  Y.  814 


415 

772 
735 
509 
285 
215 

297 

113 
403 
429 
315 
775 
370 
662 
315 
804 
225 
724 
458 

465 

735 

737 
868 
189, 
191 
372 
172 
370 
597 


Ballin  v.  Dillaye,  37  N.  Y.  35 
Baltimore  v.  Gill,  31  Md.  375 
Banfield  v.Rumsey,  4  N.Y.  S.  C.  822 
Bank  i-.  Kitching,  7  Bosw.  664 
Bank   of  Br.  N.   A.  v.    Suydam,   6 

How.  Pr.  879  406 

Bank  of  Charlotte  v.  Britton,  66  N.  C. 

365  731 

Bank  of  Genesee  v.  Patchin  Bank, 

13  N.  Y.  309  546 

Bank  of  Havana  v.  Magee,  20  N.  Y. 

855  246 

Bank   of  Lowville   v.   Edwards,    11 

How.  Pr.  216  248 

Bank  of  Stockton   v.   Howland,  42 

Cal.  129,  352 

Banker  v.  'Knickerbocker  Life  Ins. 

Co.,  24  Wise.  630  804 

Banks  v.  Johnson,   4   J.   J.   Marsh. 

649  509 

Baptist  Ch.  v.  Presbyterian  Ch.,  18 

B.  Mon.  635  307,  308,  316 

Barclay  v.  Quicksilver  Min.  Co.,  6 

Lans.  25  783 

Bardstown,  &c.  R.  R.  v.  Metcalfe,  4 

.Aletc.  199  216,  4.32,  435 

Barhyte  v.  Hughes,  83  Barb.  320       791, 

811 

Baring  v.  Nash,  1  Ves.  &  B.  551     300,  420 

Barker  v.  Bradley,  42  N.  Y.  316    165, 167 

V.  Walters,  8  Beav.  92  436 

Barlow  v.  Burns,  40  Cal.  351  627 


TABLE   OF    CASES    CITED. 


XXUl 


Barlow  v.  Mvers,  6  N.  Y.  Sup.  Ct. 

183        .       165,  166,  197,  199 

V.  Scott,  24  N.  Y.  40  86,  87, 

102,  494,  612 

V.  Scott's  Adm'rs.,  12  Iowa, 


63 


352 
628 
319 
289 
614 


Earner  v.  Morehead,  22  Ind.  354 
Barnes  v.  Beloit,  19  Wise.  93 
V.  Martin,  15  Wise.  240 
V.  Smitli,  16  Abb.  Pr.  420 
Barnstead  v.  Empire  Min.  Co.,  5  Cal. 

299  103,  129 

Barr  v.  Deniston,  19  N.  H.  170  172 

Barrett  v.  Tewksbury,  18  Cal.  334     287, 

291 
569 
252, 
287 
153, 
161,  591 
313, 
399 

i;.  Judd,  21  N.  Y.  200      115,119 

V.  Pickersgii-1,  1  Cox,  15        297 

Bass  V.  Comstock,  38  N.  Y.  21  483 

Bassett  v.  Crowell,  3  Robt.  72  348 

V.  Lederer,  1  Hunn,  274  724 

V.  Warner,  23  Wise.  673         401, 

484,  492 

Bastable  v.  Poole,  1  C.  M.  &  R.  410     170 

Bate  V.  Graham,  11  N.  Y.  237      595,  630 

Bateman    v.    Margerison,    6    Ifare, 

496 
Bates  V.  Cobb,  5  Bosw.  29 

V.  Rosekrans,  37  N.  Y.  409 


Barron  v.  Frink,  30  Cal.  486 
Bartges  v.  O'Neil,  13  Ohio  St.  72 

Barthol  v.  Blakin,  34  Iowa,  452 

Bartlett  v.  Drew,  57  N.  Y.  587 


310 
583 
769, 
772 
392 
750 
743 
185 
369 
300 
309 
404 
429 
222 


V.  Ruddick,  2  Iowa,  423     386, 
Batterman  v.  I'eirce,  3  Hill,  171 
Bauer  v.  Wagner,  39  Mo.  385      733, 
Baum  V.  (irigsby,  21  Cal.  172 
V.  Midlen,  47  N.  Y.  577 
Bayley  v.  Best,  1  Kuss.  &  My.  659 
Baynard  v.  Woolley,  20  Beav.  583 
Beach  v.  Bradley,  8  Paige,  146 
Beals  V.  Cobb,  51  Me.  348 
Bearss  v.  Montgomery,  46  Ind.  544 
Beaty   v.  Swarthout,  32  Barb.  293 

692,  734 
Bean  v.  Kiali,  6  N.  Y.  S.  C.  464  285 

Beaumont  v.  Miller,  Stanton's  Code, 

p.  42  284,  373 

Bebee  v.   Hutchinson,    17    B.    Mon. 

496 
Becker  v.  Crow,  7  Bush,  198 

V.  Sandusky    City   Bank,    1 

Minn.  311 
V.  Sweetzer,    15    Minn 


277 
629 


117 


427 

655,  673 
Pr. 

721 
303 

334,  417 
V.  Pierce,  22  La.  An.  67  465 
V.  Union   Bank,   9  N.   Y. 

211  186,  196,  197 


Beckett  V.  Lawrence,    7   Abb. 

N.  s.  403 
Beckwith  v.  Dargels,    18   Iowa, 


Bedell's  Heirs  v.  Haj'es,  21  La.  An. 

643 
Beeson  v.  Howard,  44  Ind.  413     654, 
Belknap  v.  Mclntyre,  2  Abb.  Pr.  366 

775, 
V.  Sealey,  14  N.  Y.  143 
Bell  V.  Brown,  22  Cal.  671 
Belleau  v.  Thompson,  33  Cal.  495 
Bellinger  v.  Craigue,  31  Barb.   534 

759, 
Belloc?;.  Rogers,  9  Cal.  123  386, 

Bellows  V.  Rosenthal,  31  Ind.  116 
Benkard  v.  Babcoek,  2  Robt.  175 
Bennett  v.  McGrade,  15  Minn.  132 
V.  McGuire,  5  Lans.  183 
V.  Preston,  17  Ind.  291     246, 
V.  Titherington,  6  Bush,  192 
106, 
Bentley  v.  Bustard,  16  B.  Mon.  643 
Bentz  V.  Thurber,  1  N.  Y.  S.  C.  645 
Bercich  v.  Marye,  9  Nev.  312 
Berkshire  v.  Shultz,  25  Ind.  523 

248,  252,  253, 
Berly  v.  Taylor,  5  Hill,  577 
Berry  v.  Brett,  6  Bosw.  627 
Besser  v.  Hawthorne,  3  Oreg.  129 
Bethel  v.  Wilson,  1  Dev.  &  Bat.  Eq. 

610 
Betts  V.  Bache,  14  Abb.  Pr.  279 
Bendell  v.  Hettrick,  45  How.  Pr.  198 
Bevier  v.  Dillingham,  18  Wise.  529 
Biddie  v.  Ramsey,  52  Mo.  153 
Bidwell  V.  Astor  Ins.  Co.,  16  N.  Y. 
263  83,  86,  99,  100,  492, 

Bidwell  V.  Madison,  10  Minn.  13 
Bigelow  V.  Bush,  6  Paige,  343     382, 

V.  Gove,  7  Cal.  133 
Biggs  V.  Penn,  4  Hare,  469 

V.  Williams,  66  N.  C.  427 
Bill  V.  Cureton,  2  M.  &  K.  603 
Bingham  v.  Kimball,  17  Ind.  396 


Birbeck  v.    Stafford,   14    Abb. 

285 
Bird  V.  MeCoy,  22  Iowa,  549 

V.  Mayer,  8  Wise.  362      " 
Bishop  V.  Edmiston,  16  Abb.  Pr. 
Bishop  of  Winchester  v.  Mid  H 

R.  R.,  L.  R.  5  Eq.  17 
Bitting  r.  Thaxton,  72  N.  C.  541 
Blair  v.  Shelby  Co.  Agr.  Soc,  28 

175 
Blake  v.  Buffalo    Creek   R.   R., 
N.  Y. 485 
V.  Jones,  3  Anst.  051 
V.  Van  Tilborg,  21  Wise. 

Blanehard  v.  Ely,  21  Wend.  342 
Bland  v.  Winter,  1  S,  &  S.  246 
Blanke  v.  Bryant,  55  N.  Y.  649 
Blankenship  ih  Rogers,  10  Ind. 

Blankman  v.  Vallejo,  15  Cal.  638 
Blasdel  v.  Williams,  9  Nev.  161 
Bledsoe  v.  Irvin,  35  Ind.  293 


Pr. 

771, 
547, 
466 
ants 

811, 
Ind. 

56 


672 
492, 

423, 

333 

780, 

591, 


465 
731 

777 
608 
742 
753 

822 
388 
372 
803 
162 
398 
630 

118 
715 
352 
192 
246, 
303 
619 
819 
392 

306 
583 
269 
334 
593 

511 
817 
386 
533 
407 
221 
313 
698, 
731 

182 
780 
578 
264 

311 

,814 

435 

113 

297 

611 
751 

428 
370 

820 
663 
594 
349 


XXIV 


TABLE    OF    CASES    CITED. 


Bledsoe  v.  Rader,  30  Ind.  354  753 

V.  Simms,  63  Mo.  305    344,  TO'J, 
736 
Bletlien  v.  Blake.  44  Cal.  117  734 

Blew  V.  Hoover,  30  Ind.  450  810 

Bliss  V.  Lawrence,  58  N.  Y.  442  182 

Blood  V.  Fairbanks,  48  Cal.  171     103,  423 
Bloomer  v.   Kturges,  58  N.  Y.   168 

302,  420 
Blossom  V.  Barrett,  37  N.  Y.  434  484 
Blount  V.  Burrow,  3  Bro.  C.  C.  90  310 
Blum  V.  Kol)inson,  24  Cal.  127  117 

Biydenburgh  v.    Thayer,   3  Kej'es, 

203  187,  196 

Board  of  Conim'rs.  v.  Markle,  46  Ind. 

96         ^         173 
V.  Swain,  5  Kans. 

376  349,  356 

Boardman  v.   Beckwitli,    18    Iowa, 

292  216 

Boaz  V.  Tate,  43  Ind.  60  715,  727 

Bobb  V.  Woodward,  42  Mo.  482       89,  98 
Bodine  v.  Killeen,  53  N.  Y.  93  369 

Bogardus  v.  Parker,  7  How.  Pr.  305 

422,  791 
Bogart  V.  O'Regan,  1  E.  D.  Smith, 

590  214 

Bogert )'.  Gulick,  65  Barb.  322  370 

Bohall  V.  Diller,  41  Cal.  532  576 

Bond  V.  Corbet,  2  Minn.  248        655,  693 

V.  Kenosha,  17  Wise.  284  172 

V.  Smith,  6  N.  Y.   S.    C.   239 

352,  358 

V.  Wagner,  28  Ind.  462        723,  741 

Bondurant  v.  Bladen,  19  Ind.  160       357, 

365,  448,  670,  707 

Bonesteel  v.  Bonesteel,  28  Wise.  245 

77.  79 
Bonney  v.  Reardin,  6  Bush,  34  484 

Boolier  v.    Goldsborough,    44    Ind. 

490  597 

Bool  V.  Watson,  13  Ind.  387  820 

Boomer  v.  Koon,  6  N.  Y.  S.  C.  645 

707,  731 
Boos  V.  Comber,  24  Wise.  499  291 

Booth  V.  Farm.  &  M.  Bank,  1  N.  Y. 

S.  C.  45    525,  530,  580, 622,  624 
V.  Powers,  56  N.  Y.  22  708 

V.  Sherwood,  12  Minn.  426         743 
Borah  v.  Arohers,  7  Dana,  176  299 

Borden  v.  Gilbert,  13  Wise.  670  493 

Bosley  r.  Mattingley,  14  B.  Mon.  85     118 
Boston  Mills  v.  Lull,  6  Abb.  Pr.  n.  s. 

319  762 

Botkin  )'.  Earl,  6  Wise.  393  283 

Botsford  V.  Burr,  2  Johns.  Ch.  409       297 
Botts  V.  Patton,  iD  B.  Mon.  452  404 

Bougher  v.  Suobey,  16  Ind.  151  484 

Bouijhton  t'.  Smith,  26  Barb.  635         184 
Bouslog  V.  Garrett,  39  Ind.  338  583, 

584,  653 
Bouton  V.  Brooklyn,  15  Barb.  375  243 
Bowdoin   v.    Coleman,   3   Abb.   Pr. 

431  162 

Bowen  v.  Aubrey,  22  Cal.  566    83, 93,  548 


Bowen  v.  Emerson,  3  Oreg.  452  548, 

553,  584 
Bowers  v.  Kcesecher,  9  Iowa,  422      353, 

401,  492 
Bowles  V.  Sacramento  Turnp.  Co.,  5 

Cal.  224  533 

Bowman  v.  Sheldon,  5  Sandf.  657        597 
V.  Vankuren,      29     Wise. 

209  616 

Boyce  v.  Brown,  7  Barb.  80  546 

Boyd  V.  Blaidell.  15  Ind.  73  289 

V.  Foot,  5  Bosw.  110  772 

V.  Hoyt,  5  Paige,  65  399,  519 

Boyer  v.  Clark,  3  Neb.  161  818 

Bovie  V.  Bobbins,  71  N.  C.  130     153,  164 
Bradburne  v.  Botfield,  14  M.  &  W. 

559  225 

Bradbury  v.  Cronise,  46  Cal.  287       660. 

662,  675 
Bradley  v.  Aldrich,  40  N.  Y.  504        103, 

576,  631 

V.  Angell,  3  N.  Y.  475  198 

Bradshaw  v.  Ciutram,  13  Ves.  234       389 

Brady  v.  Ball,  14  Ind.  317  358 

V.  Chandler,  31  Mo.  28  164 

V.  Weeks,  3  Barb.  157  317 

Braithwaite  v.  Britain,  1  Keen,  219     352 

Brake  v.  Corning,  19  Mo.  125  819 

Braker  v.  Devereaux,  8  Paige,  513      299 

Branch  v.  Booker,  3  Munf.  43  307 

Brand  v.  Boulcott,  3  B.  &  P.  235  226 

Brandon  v.  Allison,  66  N.  C.  532  774 

Brannaman    v.    Palmer,     Stanton's 

Code,  90  769 

Brashear  v.  Macey,  3  J.  J.  Marsh. 

93  299 

Brassey  v.  Chalmers,  4  DeG.,  M.  & 

G.  528  300 

Braxton  v.  State,  25  Ind.  82    333,  349,  353 
Bray  v.  Fromont,  6  Mad.  5  307 

Brazill  v.  Isham,  12  N.  Y.  9  726 

Brazil  v.  Moran,  8  Minn.  236        367,  368 
Brennan  v.  Ford,  46  Cal.  7  735 

Brett  V.  F'irst   Univ.  Soc.  63  Barb. 

610  699,  707 

Brewer  v.  Temple,  15  How.  Pr.  286 

500,  511 
Bridge  v.  Payson,  5  Sandf.  210     334.  349, 

723,  741 
Bridge   Co.  v.  Wyandotte,  10  Kans 

326 
Bridges  v.  Paige,  13  Cal.  640 
Bridget  v.  Hames,  1  Coll.  72 
Briggs  V.  Briggs,  15  N.  Y.  471 
V.  Briiigs,  20  Barb.  477 
V.  Daugherty,  48  Ind.  247 
V.  Penniman,  8  Cow.  387 


V.  Seymour,  17  Wise.  255 


319 
706 
809 
350 

779,  780 
129 
274 
772, 
813 


BrinkerhofF  v.  Brown,  6  Johns.  Ch. 

139  399,  404,  428 

Briscoe  i\   Kenrick,  1   Coojj.  temp. 

Cott.  371  304 

Broderick  v.  Poillou,  2  E.  D.  Smith, 

554  592 


TABLE    OF    CASES    CITED. 


XXV 


Brodnax,  v.  Groom,  64  N.  C.  244         172 
Broiestedt  v.  South  Side  R.  R.,  55 

N.  Y.  220  96 

Brooks  V.  Chilton,  9  Cal.  640  G96 

V.  Hager,  5  Cal.  281  467 

V.  Ilanford,  15  Abb.  Pr.  342     183 

f.  Peck,  38  Barb.  519  43J 

V.  Schwerin,  54  N.  Y.  343         285 

Brown  v.  Allen,  35  Iowa,  306  265 

V.  Bridges,  31  Iowa,  138  277 

V.  Brown,  4  Robt.  688         83,  84, 

96,  97,  494 

V.  Brown,  22  La.  An.  475         465 

V.  Buckingham,  11  Abb.  Pr. 

387  812 

V.  Cherry,  38  How.  Pr.  352  213 
V.  De  Tastet,  Jac.  284  307 

V.  Dowthwaite,  1  Mad.  446  402 
V.  Freed,  43  Ind.  253  127,  709 
V.  Leigh,   12  Abb.  Pr.  n.  s. 

193  615 

V.  Orr,  29  Call,  120  696,  697 

V.  Penfield,  36  N.  Y.  473  157 

V.  Perry,  14  Ind.  32  583,  585 

V.  Phillips,  3  Bush,  6-56  820 

V.  Ricketts,     3     Johns.     Ch. 

553  305,  433,  435 

V.  Saul,  4  Martin,  n.  s.  434  464 
V.  Treat,  1  Hill,  225  621 

V.  Weatherby,  12  Sim.  6  852 

V.  Woods,  48  Mo.  330        838,  340 
Bruck  V.  Tucker,  42  Cal.  346      112,  117, 

670,  709 
Brumble  v.  Brown,  71  N.  C.  513  817 

Brumskill  v.  James,  11  N.  Y.  294       338, 

350 
Brundage  v.  Dom.  &  For.  M.  Soc, 

60  Ba'ib.  204  387 

Bryant  v.  Erskine,  55  Me.  153  429 

Buckingham    v.    Waters,     14    Cal. 

146  483 

Buckles  V.  Lambert,  4  Mete.   (Ky) 

330  '  858 

Buckley  v.   Carlisle,   2  Cal.  420        103, 

129 
Bucknall  v.  Story,  36  Cal.  67  172 

Bucknam  v.  Brett,  35  Barb.  596  268 

Buckner  v.  Ries,  84  Mo.  357  129 

Budd  V.  Bingham,  18  Barb.  494  532 

Buddington  v.   Davis,    6   How.   Pr. 

401  546 

Buffum  V.  Chadwick,  16  Pick.  381      171 
Bugbee  v.  Sargent,  23  Me.  271  401 

Buhne  v.  Chism,  48  Cal.  467  127 

V.  Corbett,  43  Cal.  264      742,  748 
Bull  V.  Read,  18  Gratt.  78  172 

Bullard  v.  Johnson,  65  N.  C.  436         616 
V.  Raynor,  30  N.  Y.  197  184 

Bullis    V.    JSlontgomerv,    50    N.   Y. 

352  '  358 

Bunting  v.  Foy,  66  N.  C.  193  426 

Burbauk  v.  Beach,  15  Barb.  326  219 

V.  Taylor,  23  La.  An.  751     465 

Burgoyne  v.  Oliio  Life  Ins.  &c.  Co., 

5  Ohio  St.  586  353,  446,  447 


Burhans   v.  Burhans,  2   Barb.    Ch. 

398  420 

Burhop  V.  Milwaukee,  18  Wise.  431     334 
Burke  v.  Thorne,  44  Barb.  363  753 

Burkham  v.  Beaver,  17  Ind.  367  383, 

388 
Burnap  v.  Cook,  16  Iowa,  149     373,  395, 

429 
569 


Burnett  v.  Stearns,  83  Cal.  473 
Burney  v.  Spear,  17  Geo.  223 
Burnside  v.  Matthews,  54  N.  Y.  78 

V.  Waynian,  49  Mo.  356 
Burr  V.  Beers,  24  N.  Y.  178 

V.  Woodrow,  1  Bush,  602 
Burrows  v.  Holderman,  31  Ind.  412 
Burt  V.  Wilson,  28  Cal.  632 
Burton  v.  Anderson,  Stanton's  Code, 
34 
V.  Wilkes,  66  N.  C.  604 
Busenius  v.  Coffee,  14  Cal.  91 
Bush  V.  Groom,  9  Bush,  675. 
V.  Lathrop,  22  N.  Y.  535 


Butler  V.  Dunham,  27  111.  474 
V.  Edgerton,  15  Ind.  15 
V.  Lee,  33  How.  Pr.  251 
V.  N.    Y.  &  Erie  R    R. 

Barb.  110 
V.  Titus,  13  Wise.  429 


187, 
190, 


670,  7' 


,   22 
751, 


733 
627 
167 
525 

485 
527 

815 
805 
663 
264 
188, 
191 
172 
07 
81 


177 
804, 
806 
742 
529 
698, 
730 
623 
424 
334 
528 

224 

181, 
624 


V.  Wentworth,  17  Barb.  649 
Butt  V.  Cameron,  53  Barb.  642 
Button  V.  McCauIey,  38  Barb.  413 

Butts  V.  Collins,  13  Wend.  139 
V.  Genung,  5  Paige,  254 
Byers  v.  Rodabaugh,  17  Iowa,  53 
Byington  v.  Woods,  18  Iowa,  17 
Byrne  v.  Fitzhugh,   1   C.  M.  &  R. 

613  n. 
Byxbie  v.  Wood,  24  N.  Y.  607     177, 
184,  606;  612,  621 


c. 


Cabell  V.  Vaughan,  1  Wms.  Saund. 

291  e  326 

Cable  V.  St.  Louis  Mar.  R.  Co.,  21 

Mo.  133  164 

Cadiz  V.  Majors,  33  Cal.  288  112: 

Cahill  V.  Palmer,  17  Abb.  Pr.  196  59T 
Gaboon  v.  Bank  of  Utica,  7  N.  Y. 

486  96,  491 

Cain  V.  Hunt,  41  Ind.  466  670 

Calderwood  v.  Pyser,  31  Cal.  333         283 

Caldwell  v.  Auger,  4  Minn.  217  734 

V.    Bruggerman,   4    Minn. 

270  655.  693,  708 

Cal.  Steam  Nav.   Co.  v.  Wright,  8 

Cal.  585  733 

Calkins  v.  Smith,  48  N.  Y.  614  255 

Callaghan  v.  McMahan,  33  Mo.  Ill  510 
Callanan  v.  Edwards,  32  N.  Y.  483  187 
Calverley  v.  Phelp,  6  Mad.  229     308,  395 


XXVI 


TABLE   OF    CASES   CITED. 


Camp    V.   McOillicuddy,    10    Iowa, 
201 
r.  Pulver,  5  Barb.  91 
Campbell  v.  Fox,  11  Iowa,  318 
V.  Genet,  2  Hilt.  200 
V.  Mackay,  1  My.  &  Cr. 

603 
V.  Perkins,  8  N.  Y.  430 
r.' Routt, 42Ind. 410    744, 

V.  Stakes,  2  Wend.  137 
Canefox  v.  Anderson,  22  Mo.  347 
Cannon  v.  McManus,  17  Mo.  345 
Capell   V.   Powell,   17   C.  B.  N.    S. 

743 
Capuro  V.  Builder's  Ins.  Co.,  39  Cal. 

128 
Carman  v.  Plass,  23  N.  Y.  286      444, 
Carnev  i\  La  Cross,  &c.  R.  R.,  15 

Wise.  503  334, 

Carpenter  i'.  Leonard,  5  Minn.  155 

r.  Mann,  17  Wise.  155 
V.     Miles,    17    B.     Mon. 
598  159, 

V.  O'Dougherty,  50  N.  Y. 

660 
t>.  Stilvvell,3Abb.Pr.459 
V.    Williamson,    25    Cal. 
161 
Carr  v.  Collins,  27  Ind.  306 

V.  Waldron,  44  Mo.  393       334, 
Carrere  v.  Spoftbrd,  15  Abb.  Pr.  47 
Carrico  v.  Tumlinson,  17  Mo.  499 
Carroll   v.   Paul's    Ex'ors.,    16   Mo. 

226 
Carswell   v.  Neville,   12  How. 

445 
Carter  v.  Mills,  30  Mo.  432 


583, 
Pr. 

312, 


i;.  Sanders,  2  Drew.  248 
Cary  v.  Wheeler,  14  Wise.  281     485, 
Casad  v.  Hughes,  27  Ind.  141 
Case  V.  Carroll,  35  N.  Y.  385        246, 
Cassiday  v.   McDaniel,   8   B.    Mon. 
519  296, 

Cassin  v.  Delany,  38  N.  Y.  178 

Castner  v.  Sumner,  2  Minn.  44 
Caswell  V.  West,  3  N.  Y.  Sup.  Ct. 

383  99, 

Catlin  V.  Gunter,  1  Duer,  253       699, 

V.  Pedrick,  17  Wise.  88 
Caulfield  v.  Sanders,  17  Cal.  569 
Cavalli  i-.  Allen,  57  N.  Y.  508     116, 

785, 
Cavender  v.  Smith,  8  Iowa,  360 
Cawood's  Adm'r  v.  Lee,  32  Ind.  44 
Central  Bank  c.  Knowlton,  12  Wise. 

624 
Centre  Turnpike  Co.  v.   Smith,  12 

Vt.  217 
Chace  v.  Peck,  21  N.  Y.  581 
Chadwick  v.  Maden,  9  Hare,  188 


455 
623 
820 
771 

519 
621 
768, 
770 
621 
151 
741 

367 

714 
448 

426 
764, 
772 
172 

161 

370 
620 

386 
456 
428 
268 
81 

585 

458 
458, 
460 
313 
493 
202 
316 

403 
330, 
368 
159 

100 
730 

627 
663 
764, 
788 
346 
712 

711 

623 
115 
312, 
415 


Chamberlain  v.  Burlington,  19  Iowa, 

395  172 

V.  Painesville,  &c.  R.  R., 

15  Ohio  St.  225        648 
V.  Williamson,  2  M.  & 
S.  408  178, 179 

ghambers  v.  Goldwin,  9  Ves.  269        429 
V.  Lewis,  28  N.  Y.  454         809 
V.  Lewis,  2  Hilt.  591    619,  624 
V.  Nicholson,       30      Ind. 
349  383,  394 

Chambovet   v.    Cagney,    85    N.    Y. 

Superior  Ct.  474  286 

Cliampion  v.  Brown,  6  Johns.   Ch. 

402  414 

Chana  v.  Indianapolis,   &c.  R.  Co., 

32  Ind.  472  711 

Chance  v.  Isaacs,  5  Paige,  592  198 

Chancellor  v.   Morecrat't,   11    Beav. 

262  309,  407 

Chapman  v.  Hunt,  1  McCarter,  149     303 
V.  West,  17  N.  Y.  125  414 

Chappell  i;.  Rees,  1  De  G.,  M  &  G., 

393  429 

Charboneau  v.  Henni,  24  Wise.  250     364 
Charles  v.  Haskins,  11  Iowa,  329        162, 

181 
Charlton  v.  Tardy,  28  Ind.  452  785,  822 
Chase  v.  Abbott,  20  Iowa,  154     373,  385, 

392,  394 
V.  Long,  44  Ind.  427  734 

Chatfield    v.   Frost,   3  N.   Y.   S.  C. 

357  601 

Chautauqua  Co.  B'k.  t^.White,  6  N.  Y. 

236  493 

Cheely's    Administrator    v.    Wells, 

33  Mo.  106  485,  516 

Cheeseman  v.  Wiggins,  1  N.  Y.  S.  C. 

595  305 

Cheltenham  Fire  Brick  Co.  v.  Co- k, 

44  Mo.  29  212 

Cheshire  Iron  Works  v.  Gay,  3  Gray, 

531  314 

Chester  v.  Dickerson,  52  Barb.  349       357 
Chicago,  &c.  R.    H.   v.  North  West 
Un.  Co.,  38  Iowa,  377  548,  571, 

629 
Chicago,  &c.,  R.  R.  v.  West,  87  Ind. 

211  668,  670,  701 

Childs  V.  Hyde,  10  Iowa,  294  353 

Chiles  V.  Drake,  2  Mete.  (Ky.)  146     484 
Cholmondeley,  Ld.,  v.  Ld.  Clinton, 

2  J.  &  W.  3,  134  303,  313,  429 

Christy  v.  Dana,  42  Cal.  174  675 

Churcliill  V.  Churchill,  9  How.  Pr. 

552  627 

V.  Trapp,  3  Abb.  Pr.  306    446 

Cicero,  &c.  Co.  v.  Craighead,  28  Ind. 

274  711 

Cincinnati,  &c.  R.  R.  r.  Washburn, 

25  Ind.  259  630 

City  B'k  of  N.  H.  v.  Perkins,  29  N.Y. 

554  157 

City  of  Evansville  v.  Evans,  37  Ind. 
229  699,  729 


TABLE    OF   CASES    CITED. 


XXVll 


City  of  iiondon  v.  Perkins,  4  Bro. 
r.  C.  158 
V.     Kichmoiid,     2 
Vern.  421 
Claflin  V.  Jaroslansld,  64  Barb.  463 
V.  Ostrom,  54  N.  Y.  581     165, 

V.  Van  Wagoner,  32  Mo.  252 
Clague  V.  Hodgson,  16  ]\linn.  329 

Clapp  V.  Plielps,  19  La.  An.  461 
*;.  Preston,  15  Wise.  543 

Clarissy  v.  Met.  Fire  Dep.,  7  Abb. 
Pr.  N.  s.  352 

Clark  V.  Cable,  21  Mo.  223  266, 

V.  Fensky,  3  Ivans.  389 
V.  Finnell,  16  B.  Mon.  329    674, 
V.  Harwood,  8  How.  Pr.  470 
V.  Huber,  25  Cal.  593  117, 

V.  Langvvorthy,  12  Wise.  441 
V.  Lineberger,  44  Ind.  223 

V.  Lockwood,  21  Cal.  220 

V.  Miller,  4  Wend.  628 
V.  Key  burn,  8  Wall.  318 
V.  Storey,  29  Barb.  295 
V.  Supervisors,  27  111.  305 
Clark's  Adm'r  v.   Han.   &    St.  Jo. 

II.  R.,  36  Mo.  202 
Clark's    Adm'r   v.    Han.    &   St.   Jo. 

R.  R.  39  Mo.  451 
Clarkson  v.  Carter,  3  Cow.  85 

V.    De    Peyster,   3  Paige, 
320 
Claussen  v.  La  Franz,  4  Greene  (la.) 

224 
Clay  V.  Edgerton,  19  Ohio  St.  549 

590,  591 
Clegg  V.  Rowland,  L.  R.  3  Eq.  368 
Clegiiorn  v.  Posllewaite,  43  III.  428 
Clemens  v.  Clemens,  37  N.  Y.  59 


416 

299 
713 

160, 
167 
283 

597, 
598 
465 

356, 
447 

218 
270 
583 

,820 
597 
734 
613 

482, 
567 

112, 
127 
225 
395 
818 
172 

526 

483 
225 

315 


r.  Elder,  9  Iowa,  272 
Cleveland  v.  Barrows,  59  Barb. 
V.  Comstoc'k,  ib.  597 
Clift  V.  Northrup,  6  Lans.  330 
Cline  V.  Cline,  3  Oreg.  355 
Clink  V.  Tliurston,  47  Cal.  21 
Clinton  v.  Eddy,  1  Lans.  61 


406 
364 


548, 

667, 

762, 

Cloon   V.    City  Ins.    Co.,   1   Handy, 

32 
Coaklev  v.  Chamberlain,  8  Abb.  Pr. 
N.  s.  37  338, 

Coates  V.  Dav,  9  Mo.  315 
Coats  V.  McKee,  26  Ind.  223 
Cobb  V.  Depue,  22  La.  An.  244 
V.  Dows,  9  Barb.  230 
V.  111.   Cent.   R.   R.   38  Iowa, 
601  481, 

Cock  V.  Evans,  9  Yerg.  287 
Cockburn    v.    Thompson,   16    Ves. 
325  305,  435,  439, 

Codd  V.  Rathbone,  19  N.  Y.  37 


575, 
594 
402 
172 
418, 
421 
425 
527 
465 
819 
550 
734 
806 

349 

346 
397 
372 
465 
530 

484 
414 

521 

734 


Coe  V.  Beck  with,  10  Abb.  Pr.  296       435 
V.  Lindley,  32  Iowa,  437  827 

Coffman    c.    Putnam    Co.,   24   Ind. 

509  172 

Coghill  V.  Marks,  29  Cal.  673  467 

Cole  V.  Reynolds,  18  N.  Y.  74     77,  83,  84, 

243,  271,  364 

I'.  Turner,  6  Mod.  149  227 

Colegrove  v.  N.  Y.  &  N.  H.  R.  R., 

20  N.  Y.  492  358 

Coles  V.  Forrest,  10  Beav.  552  395 

V.  Soulsby,  21  Cal.  47         677,  734 

Collett  V.  Hover,  1  Coll.  227  312 

V.  Wollaston,   3    Bro.    C.   C. 

228  404 

Collins  V.  Butler,  14  Cal.  223  820 

V.  Groseclose,  40  Ind.  414        819 

Colton  V.  Hanchett,  13  111.  615  172 

Colwell  V.  N.  Y.  &  E.  R.  R.,  9  How. 

Pr.  311  529 

Comins  v.  Supervisors,  3  N.  Y.  Sup. 

Ct.  296  172 

Commercial  B'k.  v.  Colt,  15  Barb. 

506  187 

Commonwealth    v.    Cook,    8    Bush, 

220  567,  590 

V.  Todd,    9    Bush, 
708  774 

Compton  V.  Davidson,  31  Ind.  62         168 
Conaughty   v.   Nichols,   42    N.    Y., 

83  606,  608,  612 

Cone  V.  Niagara  Fire  Ins.  Co.,  3  N. 

Y.  Sup.  Ct.  33  166 

Conger  i'.  Parker,  29  Ind.  380  110, 

653 
Conklin  v.  Bishop,  3  Duer,  646  459 

Conn.  Life  Ins.  Co.  v.  McCormick, 

45  Cal.  580  715 

Conn.  Mat.  Life  Ins.  Co.  v.  Cross, 

18  Wise.  109  493 

Conner  v.  Board  of  Education,    10 

Minn.  439  492 

V.  Winton,  7  Ind.  523     794,  805, 

808 

Connoss  i'.  Meir,  2  E.  D.  Smith,  314    629 

Conro  V.  Port  Henry  Iron  Co.,  12 

Barb.  27  314,  316 

Considerant  v.  Brisbane,  22  N.  Y., 

389  210,  212 

Converse  v.  Symmes,  10  Mass.  377     227 

Conway  v.  Smith,  13  Wise.  125  817 

V.  Wharton,  13  Minn.  158      742 

Conyngham     v.    Smith,     16    Iowa, 

471  153,  161,  168,  817 

Cook  V.  Finch,  19  Minn.  407  742 

V.  Klink,  8  Cal.  347  291 

V.  Lovell,  11  Iowa,  81  820 

V.  Soule,  56  N.  Y.  420  803 

Cookingham    v.   Lasher,   2    Keyes, 

454 
Cooley  V.  Brown,  30  Iowa,  470 

V.   Howe    IMachine    Co.,   53 
N.  Y.  620 
Coolidge    V.    Parris,    8     Ohio     St. 
594  367,  374 


351 
309 


165 


xxvm 


TABLE    OF   CASES   CITED. 


Cope  V.  Parry,  2  J.  &  W.  538       297, 
Copis  V.  Mul(lletoi),  2  Mad.  410 
Coppard  V.  Allen,    2  DeG.  J.  &  S. 
173  403, 

Corby  v.  Weddle,  57  Mo.  452 
Corcoran  v.  Doll,  32  Cal.  82 
Cord  V.  Hirsch,  17  Wise.  403      334, 

Corey  v.  Rice,  4  Lans.  141 

Corn  Ex.  Ins.  Co.  v.  Babcock,   42 

N.  y.  613 
Cornell  v.  Dakin,  38  N.  Y.  253 

V.  Kadway,  22  Wise.  260 
Corning  v.  Corning,  6  N.  Y.  97 

V.  Smith,  6  N.  Y.  82 
Cornish  v.  Gest,  2  Cox,  27 
Corpenny  v.  Sedalia,  57  Mo.  88    591, 
Coryell  v.  Cain,  16  Cal.  567 
Cosby  V.  Wickliffe,  7  B.  Hon.  120 

Coster  V.  Brown,  23  Cal.  142 

V.  Mayor,  &c.,  43  N.  Y.  399 

V.  N.  Y.  &  E.  R.  R.  5  Duer, 

677  264, 

Cottle  V.  Cole,  20  Iowa,  481         152, 

159,  169,  462, 

County  of  Wapello  v.  Bighara,  10 

Iowa,  39 
County  of  Yuba  v.  Adams  &  Co.,  7 

Cal.  35 
Coursen  v.  Hamlin,  2  Duer,  513 
CovinEcton,   &e.    R.    R.   v.   Bowler's 
Heirs,  9  Bush,  468  296, 

Cowen  V.  Ward,  35  Cal.  195 
Cowin  V.  Toole,  31  Iowa,  513 

Cowles  V.  Cowles,  9  How.  Pr.  361 
Cox  V.  West.  Pae.  11.  R.,   47    Cal. 

87 
Coy  V.  Downie,  14  Flor.  544 
Craft  V.  Comm'rs,  5  Kans.  518 
Cramer  i'.  Benton,    60i     Barb. 


V.  Morton,    2    Molloy, 


216 
110, 
108 
309, 


312 

398 

407 
707 
283 
382, 
385 
274 

370 

734 
401 
646 
395 
299 
594 
548 

314, 
378 
467 

165, 
167 

529 
157, 
817 

352 

467 
784 

308 
820 
548, 
571 

778 

484 
821 
172 

111 

310 


Crane  r.  Hardman,  4  E.  D.  Smith, 

448 
Crary  i'.  Goodman,  12  N.  Y.  266    83, 

Crawford  v.  Adams,  Stanton's  Code, 
91 
V.  Gunn,  35  Iowa,  543 
Creager  v.  Walker,  7  Bush,  1       106, 
Creecy  v.  Pearce,  69  N.  C.  67 
Creed  v.  Ilartman,  29  N.  Y.  591 
Crocker  i-.  Craig,  46  Me.  327 
Croft  V.  Waterton,  13  Sim.  653 
Cropsey  v.  Sweeney,  27  Barb.  310 


Crosby  v.  Davis,  9  Iowa,  98 
Cross  V.  Hulett,'53  Mo.  397 

V.  Truesdale,  28  Ind.  44 
Crouch  V.  Gridley,  6  Hill,  250 
Crow  V.  Vance,  4  Iowa,  434 


77, 


86, 
115 

742 
260 
116 
394 
357 
313 
298 

578 
414 
263 
165 
183 
386 


Crozier  v.  McLauglilin,  1  Nev.  848 

83, 
Cruger  v.  McLaury,  41  N.  Y.   219 

259, 
Cudlip  V.  Whipple,  4  Duer,  610 

Cuffi;.  Dorland,  55  Barb.  481 

Cullen   V.   Duke  of   Queensbury,  1 

Bro.  C.  C.  101 ;  1  Bro.  P.  C.  396 

305, 

Cumings  v.  Morris,  3  Bosw.  560 

Cumraings  v.  Morris,  25  N.  Y.  625 

161,  243, 

V.  Thompson,   18    Minn. 

246 
V.  Vorce,  3  Hill,  282 
Cummins   v.  Barkalow,    4     Keyes, 

514 
Cunningham  v.  Pell,  5  Paige,  607 

Curd  V.  Dodds,  6  Bush,  681  367, 

V.  Lackland,  43  Mo.  139         89 


132 

261 
583, 
592 
102 


Curran  v.  Curran,  40  Ind.  473 


583, 
654, 
Currie  v.  Cowles,  6  Bosw.  452     762, 
V.  Fowler,    5    J.    J.    Marsh. 
145 
Curry  v.  Keyser,  30  Ind.  214 
Curtiss  V.  Barnes,  SO  Barb.  225 
Curtis  V.  Curtis,  3  Louis.  513 
V.  Herrick,  14  Cal.  117 
V.  IMohr,  18  Wise.  615 
V.  Moore,  15  Wise.  134      626, 
V.  Richards,  9  Cal.  33       674, 

Cutis  V.  Guild,  57  N.  Y.  220 

V.  Tliodey,  13  Sim.  206 
Cythe  V.  Fountain,  51  Barb.  186 


433 
773 

784 

715 
623 

216 
309, 
404 
368 
,  98, 
495 
584 
819 
821 

569 
715 
818 
465 
220 
160 
628 
676, 
677 
190 
312 
116 


D. 

Daby  v.  Ericsson,  45  N.  Y.  786  268 

Dahoney  v.  Hall,  20  Ind.  264  414 

Dailey  v.  Houston,  68  Mo.  361     247,  289, 
368,  514,  516,  601 
Daking  v.  Whimper,  26  Beav.  -568       311 
Dale  V.  Masters,  Stanton's  Code,  97 

805,  806 
Daly  V.  Burchell,  13  Abb.  Pr.  n.  s. 

264  387 

V.  Proetz,  20  Minn.  411  731 

Daniels  v.  Clark,  38  Iowa,  556  461 

Danjean  v.  Blacketer,  13  La.   An. 

595  465 

Darbv  v.  Callaglian,  16  N.  Y.  71  285 

Dare'w.  Allen,  1  Green  Ch.  288  310 

Darlington  v.   Effey,   13  Iowa,   177 

385,  389,  395 
Dart  V.  McQnilty,  6  Ind.  391  456 

Darwent  v.  Walton,  2  Atk.  510  305 

Davanay  v.  Eggenhoff,  43  Cal.  395 

696,  697,  725 
Davenport  v.  Short,  17  Minn.  24         735 


TABLE    OF   CASES    CITED. 


XXIX 


Davenport  v.  Turpiii,  43  Cal.  397 

David  V.  Frowd,  1  Mvl.  &  K.  200 
Davidson  v.  Elms,  67'  N.  C.  228 
V.  King;,  47  Ind.  372 
I'.  Eeniington,  12  How.Pr. 
310  762, 

V.  Smith,  20  Iowa,  4G6 
Davies  v.  Davies,  11  Eng.  L.  &  Eq. 
R.  199 
r.  Williams,  1  Sim.  5 
Davis  V.  Davis,  26  Cal.  23 

V.  Eppinger,  18  Cal.  878 
V.  Hoppoclf,  6  Duer.  254 
V.  Lamberton,    56   Barb.   480 
96,  97, 
V.  Mason,  3  Oreg.  154 
V.  The  Mayor,  2Duer,  G33  ;  3 

Duer,  119 
V.  Milburn,  3  Iowa,  163 
V.  IMorris,  36  N.  Y.  569       88, 


V.  Shuler,  14  Flor.  438 
V.  Storer,  58  N.  Y.  473 
V.  Warfield,  38  Ind.  461 
Davoue  v.  Fanning,   4  Johns. 

199 
Day  V.  Hammond,  57  N.  Y.  479 
V.  Patterson,  18  Ind.  114 
V.  Vallette,  25  Ind.  42 
V.  Wamsley,  33  Ind.  145 


774, 
Ch. 

627, 
670 


Dayljuffu.  Davhuff's  Adm'r,  27  Lid. 

158 
Dayton  v.  Wilkes,  5  Bosw.  655 
Dayton  Ins.  Co.  v.  Kelly,  24  Ohio 

St.  345 
Dean  v.  Cliamberlin,  6  Duer,  691 
V.  English,  18  B.  Mon.  132 

276, 
V.  Leonard,  9  Minn.  190 
V.  Yates,  22  Ohio  St.  388     605, 
De  Baun  v.  Van  Wagoner,  56  Mo. 

347 
De  Bolt  V.  Carter,  31  Ind.  355    248, 

Decker  v.  Mathews,  12  N.  Y.  313 
V.  Trilling,  24  Wise.  610 

Deeryr.  McClintock,  31  Wise.  195 
De  GoUs  V.  Ward.  3  P.  Wms.  311 
De  Graw  v.  Elmore,  50  N.  Y.  1 

552,  602,  604, 
De  Hoghton  v.  Money,  L.  R.  2  Ch. 

App.  164  311, 

Delabere   v.    Norwood,    3    Swanst. 

144  (n.) 
Delaplaine  v.  Lewis,   19   Wise.  476 

382, 
De  la  Vergne  v.  Evertson,  1  Paige, 

181 
De  Leyer  v.  Michaels,  5  Abb.  Pr. 

203  770, 

Deming  v.  Kemp,  4  Sandf.  147 
Dennis  v.  Belt,  30  Cal.  247  805, 


386, 
709 
439 
216 
652 

773 
292 

306 
309 
734 
467 
708 

494 

585 

455 
820 
101, 
105 
670 
819 
708 

305 

734 
165 
737 
668, 
707 

820 
459 

630 
2fJ9 
163, 
481 
661 
609 

371 

252, 
254 
597 

444, 
447 
102 
310 

548, 
609 

312 

392 

388 

316 

788 
751 
806 


Denton  v.  Logan,  3  Mete.  (Ky.)  434     731 
V.  Nannv,  8  Barb.  624  382 

De  Puy  V.  Strong,  37  N.  Y.  372     247,  260 
Derby  v.  Gallup,  5  Minn.  119  742 

De  Rider  v.  Schermerhorn,  10  Barb. 

638  356, 448 

Desmond  v.  Brown,  33  Iowa,  13  722 

Despard  v.  Walbridge,  15  N.  Y.  374 

118,119 
De  Uprey  v.  De  Uprey,  27  Cal.  329 

373,  423 
Devall  V.  Boatner,  2  La.  An.  271  465 
Devaynes  v.  Robinson,  24  Beav.  86  407 
Devol  V.  Mcintosh,  23  Ind.  529     165,  166, 

167 

Devyr  v.  Schaefer,  55  N.  Y.  446  652 

Dewey  v.  Hoag,  15  Barb.  365  110 

V.  Lambier,  7  Cal.  347  262 

DeWitt  V.    Chandler,   11  Abb.    Pr. 

459  219 

I'.  Havs,  2  Cal.  463      77,  79,  83 
D'Wolf  r.  D'Wolf,  4  R.  I.  450  307 

Dias  V.  Bouchaud,  10  Paige,  445  404 

u.  Merle,  4  Paige,  259  396,  429 

Dice  1-.  Morris,  32  Ind.  283 
Dickens  v.   N.  Y.   Cent.  R.  R.,   13 

How.  Pr.  228 
Dickenson  v.  Vanderpoel,  5 

S.  C.  168 
Dickson  v.  Cole,  34  Wise.  621 


N.   Y. 


825 

517 

247 
88, 
629 
787 
765 
773 
247,  733 
403,  407 
519 
180 
216 
899 
467 


77 
102, 
Diddell  v.  Diddell,  3  Abb.  Pr.  167 
Dietrich  v.  Koch,  85  Wise.  618 
Dillaye  v.  Niles,  4  Abb.  Pr.  253 

V.  Parks,  31  Barb.  132 
Dillon  V.  Bates,  39  Mo.  2\r2 
Dim  mock  i-.  Bixby,  20  Pick.  368 
Dininny  v.  Fav,  38  Barb.  18 
Dix  V.  Akers,  30  Ind.  431 

V.  Briggs,  9  Paige,  595 
Dixey  v.  Pollock,  8  Cal.  570     , 
Doan  V.  Holly,  26  Mo.  186 ;  25  Mo. 

357  493 

Dob  V.  Ilalsey,  16  Johns.  34  227 

Dobson  V.  Pearce,  12  N.  Y.  156     83,  109, 
112, 114, 119 
Dodge  V.  Dunham,  41  Ind.  186  654 

Dolph  V.  Rice,  21  Wise.  590  772 

Donahue  v.  Prosser,  10  Iowa,  276         820 
Donald  v.  Bather,  16  Beav.  26  29S 

Donnell  i'.  Walsh,  83  N.  Y.  43  247,  264 
Doody  V.  Higgins,  9  Hare  App.  32  310 
Doolittle  V.  Green,  82  Iowa,  1 23  589, 664 
V.  Supervisors,    18    N.   Y. 


155 

Doreraus  v.  Selden.  19  Johns.  213 
Dorsey  v.  Reese,  14  B.  Mon.  157 

Dorwin  v.  Potter,  5  Denio,  306 
Douglas  V.  First  Nat.  Bank,  17  Minn 
35 
V.  Horsfall,  2  S.  &  S.  184 
Douglass  V.  Bishop,  27  Iowa,  214 

V.  Placerville,  18  Cal.  643 


172 
226 
118, 
820 
751 

817 
308 
384, 
887 
172 


XXX 


TABLE  OF  CASES  CITED. 


Dounce  v.  Dow,  57  N.  Y.  16  804 

Downer  v.  Smith,  'l\  Cal.  114  117 

Downs  V.  McCombs,  It)  Ind.  211  712 

Dows  V.  Cliiciiro,  11  Wall.  108  172 

Doyle  V.  Franklin,  48  Cal.  537  629 

V.  PliaMiix   Ins.   Co.,  44    Cal. 
2(14  5G8,  590,  596 

Dragoo  v.  Levi,  2  Duv.  520         484,  500, 

511 
Drake  v.  Cockroft,  4  E.  D.   Smith, 

VA  791,  808 

V.  Phillips,  40  111.  388  172 

Draper  v.  Lord   Clarendon,  2  Vern. 

518  392 

V.  Stouvenel,  35  N.  Y.  507       285 

t'.  Van  Horn,  15  Ind.  155        424 

Drew  V.  Ferson,  22  Wise.  651  104 

V.  Harman.  5  Price,  319  428 

Drury  v.  Clark,  16  How.  Pr.  424        381, 

382,  388 
Dubois  V.  Hermance,  56"  N.  Y.  673 

707,  715,  731 
Dubroca  v.  Her  Husband,  3  La.  An. 

331  465 

Duck  V.  Abbott,  24  Ind.  349  129,  411 
Dudley  v.  .Scranton,  57  N.  Y.  424  803 
Duffy  V.  Duncan,  35  N.  Y.  187  774 

Duncan  v.  Berlin,  5  Robt.  457  350 

V.  Stanton,  30  Barb.  533         773 
V.  Wickliffe,  4  Scam.  452       413 
Duncombe  v.  Hansley,  3  P.   Wins. 

333  (n.)  389 

Dunderdale  v.  Grymes,  16  How.  Pr. 

195  247 

Duniiam  v.  Gillis,  8  Mass.  462  225 

Dunlap  V.  Snyder,  17  Barb.  561  721 

Dunning  v.  Kumbaugh,     36     Iowa, 

566  659,  707 

V.  Thomas,    11    How.   Pr. 

281  627 

Du  Pont  V.  Davis,  35  Wise.  631  106, 

112,  784,  785 

Durant  v.  Gardner,  10  Abb.  Pr.  445    517 

Durbon  v.  Kelly's  Adm'r,  22  Ind. 

\83  820 

Durgin  V.  Ireland,  14  X.  Y.  322  153,  159 
Durliam  v.  Bischof,  47  Ind.  211  365,  417 
Durkee  v.  City  Bank,  13  Wise.  216 

626,  628 
Dutil  V.  Pacheco,  21  Cal.  438  467 

Duvall  V.  Tinsley,  54  Mo.  93  494,  495 
Dyson  v.  Hornby,    7    DeG.,    M.   & 

G.  1  310 

V.  Morris,  1  Hare,  413       309,  402 

V.  Keam,  9  Iowa,  51         699,  708, 

727 


E. 


Eagle  Fire  Ins.  Co.  v.  Lent,  6  Paige, 


637 

Eagle  1-.  Swavze,  2  Dalv,  140 
Earl  V.  Bull,  15  Call,  421 
Eastman  c.  Linn,  20  Minn.  433 


895 

368 

804 

768,  785, 

813,814 


Eastman  v.  St.  Anthony's  Falls  W. 

P.  Co.,  12  Minn.  137        735 
V.  Turman,  24  Cal.  379         493 
East  River  Bank  v.  Hogers,  7  Bosw.     493 
Eaton  ».  Alger,   47  N.    Y.    345;     2 

Keycs,  41  157,  446 

V.  Alger,  57  Barb.  179  156 

V.  Smith,  19  Wise.  537  126 

V.  Tallmage,  22  Wise.  526         821 

Eccleston  v.  Clipsham,  1  Wm.  Saund. 

153  224,  225,  326 

Eddie  v.  Park's  Ex'ors  ,  31  Mo.  513     403 

Ederlin  v.  Judge,  36  Mo.  350        485,  530 

Edgell  V.  Havwood,  3  Atk.  357  315 

Edgerton  v.  Page,  20  N.  Y.  281     790,  808 

V.  Smith.SDuer,  614  597 

Edwards  v.  Bohannon,  2  Dana,  98      302 

V.  Can)pbell.  23  Barb.  423     155 

V.  Edwards,   24    Ohio    St. 

402  729 

Egberts  v.  Woods,  3  Paige,  517  306 

Ehle  V.  Haller,  6  Bosw.  661  530 

V.  Piirdy,  6  Wend.  629  324 

Elam  V.  Garrard,  25  Geo.  557  316 

Eldridge  v.  Adams,  54  Barb.  417        134, 

135 
V.  Mather,  2  N.  Y.  157  707 

Elfrank  v.  Seiler,  54  Mo.  134  593 

Ellicott  V.  Mosier,  7  N.  Y.  201  344 

Ellithorpe  v   Buck,  17  Ohio  St.  72         88 
Ells  V.  Pacific  K.  P..  55  Mo  278  654 

Elson  V.  O'Dowd,  40  Ind.  300  733 

Emeric  v.  Penniman,  26  Cal.  119         127, 

220 

Emerson  v.  Fox,  3  Louis.  178  464 

Emery  v.  Pease,  20  N.  Y.  62         86,  103, 

104,  129,  612 

Emmerson's  Adm'r  v.   Herriford,  8 

Bush,  229  817 

Emmet  v.  De  Long,  12  Kans.  67         406. 
P2nimons  v.  Kiger,  23  Ind.  483  77 

Enderby,  Ex  parte,  2  B.  &  C.  389        777 
Enders  v.  Beck,  18  Iowa,  86  289 

Englander  v.  Rogers,  41  Cal.  420         576 
Englebreclit   v.   Rickert,    14    Minn. 

140  787 

Entjlis  V.  Furniss,  4   E.  D.   Smith, 

587  364 

Ennis   v.  Harmony   F.   Ins.    Co.,  3 

Bosw.  516  276 

Erickson   v.   Compton,   6  How.   Pr. 

471  215* 

Ernst  V.  Kunkle,  5  Ohio  St.  520  772 

Erwin  v.  Lowry,  1  La.  An.  276  465 

Estabrook  v  Messersmith,  18  Wise. 

545  252,  253,  266 

Estrada  v.  Murphy,  19  Cal.  272  117 

Etcheborne  I'.  Auzerias,45  Cal.  121     734 
Ethridge  v.  Vernoy,  71  N.  C.  184       302. 

389,  394 
Evans  v.  Harris,  19  Barb.  416      583,  585 
I'.  Job,  8  Nev.  322  568 

V.  Southern  T.  Co.,   18   Ind. 

101  712 

V.  Trippe,  35  Iowa,  371  426 


TABLE    OF    CASES    CITED. 


XXXI 


Evans  v.  Williams,  60  Barb.  346 


Evens  v.  Hall,  1  Handy,  434 
Eversole  ^'.  Moore,  3  Rusli,  49 
Ewing  V-  Paltison,  35  Ind.  326 
Excelsior  Draining  Co.  v.  Brown,  47 

Ind.  19 
Exchange  Bank  v.  Rice,  107  Mass. 

37 
Eyre  v.  Cook,  10  Iowa,  23 


F. 


69.5, 
707 
818,  819 
820 
827 


6.52 

167 
820 


Fahricotti  v.  Launitz,  3  Sandf.  743 
Faesi  v.  Goetz,  15  Wise.  231 
Fagan  v.  Barnes,  14  Fla.  53 


597 
493 
411,  4.56, 
517,  526 
Fairchild  v.  Amsbaugh,  22  Cal.  572 

696,  725 
Fairfield  v.  Adams,  16  Pick.  381  171 

Faitiiful  V.  Hunt,  3  Anst.  751  395 

Fankboner  v.  Fankboner,  20  Ind.  62 

628,  714,  820 
Farmer  v.  Calvert,  44  Ind.  209     708,  731 
?'.  Curtis,  2  Sim.  466        304,429 
Farmers'  Bank  v.   Bavliss,  41   Mo. 

274  483,  515 

V.  Sherman,  33  N.Y. 

69  648,  725 

Farnbam  v.  Campbell,  10  Paige,  598    815 

Farrell  v.  Hennesy,  21  Wise.  632         629 

V.  Smith,  2  B.  &  B.  337     402,  439 

Farron  v.  Sherwood,  17  N.  Y.  227      548, 

578,  583,  585 


Farwell  r.  Jackson,  28  Cal.  105 
Fasnacht  i'.  Stehn,  53  Barb.  650 
Fay  V.  Davidson,  13  Minn.  523 
V.  Grimsteed,  10  Barb.  321 
Fear  v.  Jones,  6  Iowa,  169 
Fearing  v.  Ball's  Executors,  6  Louis. 

685 
Feely  v.  Sliirley,  43  Cal.  369 
Felch  V.  Beaudrv,  40  Cal.  4.39 
Fell  V.  Brown,  2  Bro.  C.  C.  278 


493 
597 
358 
730 
171 


Fellows  V.  Fellows,  4  Cow.  682 
Fells  V.  Vcstvali,  2  Keyes,  152 
Fenton  v.  Hughes,  7  Ves.  288 
Fenwick  v.  Bulman,  L  R.  9  Eq.  165 
Ferguson  v,  Ferguson,  1  Hayes  &  J, 
300 
V.  'Rumsey,  41  Ind.  511 


464 

663 

675 

304, 

389,  429 

399,  428 

583,  585 

522 


Ferreira  v.  De  Pew,  4  Abb.  Pr.  131 

770, 
Ferrer  v.  Barrett,  4  Jones  Eq.  455 


311 

310 
670, 
707 


773 
423 
428 

Ferrin  v.  Myrick,  41  N.  Y.  315    517,  531 
Ferris  v.  Dickerson,  47  Ind.  382  301 

Fetherly  v.  Burke,  54  N.  Y.  646  732 

Field  V.  IlarrLson,  20  La.  An.  411         465 
V.  Mathison,  3  Rob.  38  465 

i;.  Mayor,  6  N.  Y.  179  182,  204 


Fields  V.  Fowler,  4  N.  Y.  S.  C.  598  221 
Finch  V.  Finch,  2  Ves.  Sen.  492  311 

Finley  v.  Quirk,  9  Minn.  194  693,  731 
Finnetran  v.  Carraher,  47  N.  Y.  493  345 
Finnell  v.  Neshitt,  17  B.  Mon.  354  820 
Finney  v.  Brant,  19  Mo.  42  273 

First   Nat.    Bank,  &c.  v.  Church,  3 

N.  Y.  S.  C.  10  645 

First  Nat.  Bank  v.  Haire,  36  Iowa, 

443  371 

V.  Hogan,   47    Mo. 

472  664 

V.  Indianapolis,  &c. 

Co.,  45  Ind.  5     361 
.  V.  Kidd,    20  Minn. 

234  774 

Fish  V.  Berkey,  10  Minn.  199  511 

V.  Howland,  1  Paige,  20      296,  308, 

433,  435 

V.  Reddington,  31  Cal.  185  662 

Fisher  v.  Hall,  41  N.  Y.  416         247,  261 

V.  Hamilton,  48  Ind.  239  707 

V.  Hepburn,  48  N.  Y.  41     345,  418 

V.  Hubbell,    65   Barb.    74 ;    1 

N.  Y.  S.  C.  97     278,  298,  364 
V.  Moolick.  13  Wise.  321  785 

Fisk  V.  Tank,  12  Wise.  276  495,  600,  711 
Fitch  V.  Gosser,  54  Mo.  267  277 

Fithian  v.  Monks,  43  Mo.  502  89,  98 

Fitzsimmons  v.  City  Fire  Ins.  Co.,  18 

Wise.  234  653 

Flack  V.  Dawson,  69  N.  C.  42  364,  655 
Flanagan  v.  Tinen,  53  Barb.  587  368 

Flanders  v.  McClanahan,    24    Iowa, 

486  417 

V.  McVickar,  7  Wise.  372 

591,  645 
Fleming  v.  Mershon,  36  Iowa,  413  319 
Flemming  ».  Sliields,  21  La.  An.  118  465 
Fletcher  v.  Holmes,  32  Ind.  497  382, 

394,  827 
V.  Holmes,  40  Me.  364  313 

Flint  V.  Spurr,  17  B   Mon.  499  437 

Floyd  V.  Wiley,  1  Mo.  430  520 

Flynn  v.  Bailey,  50  Barb.  73  512 

Foerster  v.  Kirkpatrick,  2  Minn.  210  584 
Poland  V.  Johnson,  16  Abb.  Pr.  235  721 
Foley  V.  Addenbroke,  4  Q.  B.  197  225 
P^oUett  V.  Heath,  15  Wise.  601  110 

Folsom  V.  Carli,  6  Minn.  420  820 

Foot  V.  Bronson,  4  Lans.  47  317 

Foote  V.  Lathrop,  53  Barb.  183  374 

Ford  V.  Bronaugh,  11  B.  Mon.  14        226 
V.  Mattice,  14  How.  Pr.  91  627 

Fordyce  v.  Hathorn,  57  Islo.  120  741 

Forepaugh  v.  Appold,  17  B.   Mon. 

632  453 

Forkner  v.   Hart,   Stanton's    Code, 

p.  60  484,  530 

Forsvth  V.   Edmiston,   2    Abb.    Pr. 

430  361 

Fort  Stanwix  Bank  v.  Leggett,  51 

N.  Y.  5.52  335,  338 

Fort  Wayne,  &c.  R.  R.  v.  McDonald, 
48  Ind.  241  583 


xxxu 


TABLE    OF    CASES    CITED. 


Fosgate  r.  Herkimer  Man.   Co.,   12 

N.  Y.  580  ;  \2  Barb.  352  345 

Foster  v.  (longer,  61  Barb.  H5  370 

i;.  Elliott,  38  Iowa,  216     260,  277, 

58y 

V.  Hooper,  2  Mass.  572  327 

V.  Townsliend,    12   Abb.   Pr. 

N.  s.  4G9  398 

V.  Watson,   16  B.   Mon.  377 

102,  105 

Foulkes  V.  Davies,  L.  R.  7  Eq.  42        313 

Fowler  v.  Frisbie,  37  Cal.  34         208,  272 

V.  Houston,  1  Nev.  469  352 

V.  Seaman,  40  N.  Y.  592  370 

Fox  r.  Backer,  14  Ind.  309  820 

V.  Duff,  1  Daly,  196  285 

Fraler  v.  Sears  Union  Water  Co.,  12 

Cal.  555  526 

Francis  l:  Francis,  18  B.  Mon.  57        674 
Franco  v.  Franco,  3  Ves.  77  309 

Frank  v.  Kessler,  30  Ind.  8  517 

Franklin  v.  Kelley,  2  Neb.  79  709 

Frans  v.  Young,  24  Iowa,  375      252,  266 
Frear  r.  Br  van,  12  Ind.  343  455 

Frecking  v'  Uolland,  53  N.  Y.  422         370 
Freeman  v.  Carpenter,  17  Wise.  126 

723,  741 
Freethy  v.  Freetliy,  42  Barb.  041  286 
Freitag  v.  Burke,  45  Ind.  38  650 

French  u.  Gifford,  30  Iowa;  148  316, 

406,  410 

V.  Saile,  Stanton's  Code,  96     804 

V.  Turner,  15  Ind.  59       365,  383, 

391 

FricTt  V.  White,  57  N.  Y.  103  196 

Fried  v.  N.  Y.  Cent.  R.  R.,  25  How. 

Pr.  285  180 

Friermuth  v.  Friermuth,  46  Cal.  42     585 
Frisbee  v.  Langworthy,  11  Wise.  375 

708,  726,  727 
Frisch  v.  Caler,  21  Cal.  71  696,  698,  725 
Fritz  V.  Fritz,  23  Ind.  388  485,  528 

Frost  V.  Harford,  40  Cal.  165  675 

Fry  V.  Bennett,  5  Sandf.  54  540,  629 

V.  Evans,  8  Wend.  530  204,  774 

Frybarger  v.  Cokefair,  17   Ind.  404 

698,  731 
Fugate  V.  Pierce,  49  Mo.  441  743 

Fulliam  V.  McCarthy,  1  H.  L.  Cas. 

703  313 

Fuller  V.  Benjamin,  28  Me.  255  305 

V.  Fullerton,  14  Barb.  59  215 

Ftillerton  (•.  McCurdy,4  Lans.  132      412 

Fulton  Fire  Ins.  Co.  v.  Baldwin,  37 

N.  Y.  648  180,  248 

Fultz  V.  Fox.  9  B.  Mon.  499  373 

V.  Wycoff,  25  Ind.  321  645 

Furman  i-.  Van  Sise,  56  N.  Y.  435  278 


G. 


Gaines  v.  Page,  15  La.  An.  108  405 

V.  Walker,  Ki  Ind.  361  "  383,  392 

Galbreath  v.  Gray.  20  Ind.  290  345, 

Gale  t'.  Battin,  16  Minn.  148  399 


Gallimore  i'.   Ammerman,   39    Ind. 

323  715 

(Jalloway  v.  Jenkins,  63  N.  C.  147  172 
Galhip  V.    Albany   R.    K.,    7    Lans. 

471  808 

Gannon  v.  Dougherty,  41  Cal.  061  817 
Gardiuior,  r.  Kellogg,  14  Wise.  005  216 
Gardner  v.  Clark,  21  N.  Y.  399  723, 

741 
V.  Ogden,  22  N.  Y.  327  514 

V.  Walker,     22     How.     Pr. 

405  358 

Garner  v.  Cook,  30  Ind.  331  168 

V.  McCullough,  48   Mo.  318 

568,  573,  595 
V.  Wright,  24  How.  Pr.  144  ; 

28  id.  92  400 

Garnsey  v.  Rogers,  47  N.  Y.  233  107 

Garretson  v.  Seaman,  54  N.  Y.  652      370 
Garrett  v.  Gault,  13  B.  Mon.  378     77,  83 
V.  Handley,  4  B.  &  C.  664      225 
V.  Trotter,  65  N.  C.  430  6S0 

Garrison  v.  Clark,  11  Ind.  369      158,  670 

733 
V.  Howe,  17  N  Y.  458  274 

V.  Jarvis,  54  Barb.  179  786 

Gas   Co.   V.   San   Francisco,  9    Cal. 

453  676 

Gaskell  v.  Gaskell,  6  Sim.  643  800 

Gasquet  v.  Johnson,  1  Louis  R.  431  464 
Gaston  v.  McLeran,  3  Oreg.  389  6-30,  715 
Gates  V.  Boomer,  17  Wise.  455    313,  315, 

493 

V.  Kief,  7  Cal.  125  96 

V.  Lane,  44  Cal.  392  426 

V.  Salmon,  35  Cal.  576      423,  548, 

571,  629 

Gazynski  v.  Colbnrn,  11  Cash.  10       227 

Gee  V.  Lewis,  20  Ind.  149  283 

Geoghegan  r.  Ditto,  2  Mete.  433  820 

Gen.    Mut.  Ins.    Co.    v.   Benson,    5 

Duer,  168  307 

Gettv  V.  Hudson  R.  R.,  6  How.  Pr. 

209  83 

Ghirardelli  v.  Bourland,  32  Cal.  585  515 
Gibson  v.  Foster,  2  La.  An.  503  405 

Gitfert »;.  West,  33  Wise.  617  601 

Gilbert  v.  Rounds,  14  How.  Pr.  46       721 
V.  Sage,  5  Lans.  287  734 

Gildersleeve  v.  Burrows,  24  Ohio  St. 

214  196 

Giles  V.  Lyon,  4  N.  Y.  600  83 

Gill  V.  Johnson,  1  Mete.  642  163,  365 
Gillam  v.  Sigman,  29  Cal.  637     335,  340, 

733 

Gillespie  v.  Alexander,  3  Russ.  130     439 

V.  Torrance,  25  N.  Y.  306     770, 

771,  822 

Gillett  V.  Hill,  32  Iowa,  220  736 

V.  Treganza,    13  Wise.  472      89, 

126,  613,  631 

Gillilan  v.  Norton,  6  Robt.  540  355 

Gilmer  v.  Hill,  22  La.  An.  405  172 

Gilmore  v.  Fox,  10  Ivans.  509  319 

y.  Norton,  10  Kans.  491  319 


TABLE    OF    CASES    CITED. 


XXXlll 


Giraud  v.  Beacli,  3   E.   D.   Smith, 

337  252,  275 

Glazer  v.  Clift,  10  Cal.  303  708 

Gleadell  v.  Thompson,  5tj  N.  Y.  194     805 
Gleason  v.  Moen,  2  Duer,  639      762,  773, 

797 
Glen  &  Hall  Man.  Co.  v.  Hall,  6  Lans. 

158  786 

Glen  V.  Hope  Mut.  L.  Ins.  Co.,  56 

N.  Y.  379  165,  167 

Glenn  v.  Waddell,  23  Ohio  St.  605     317, 

319 

Gock  V.  Keneda,  29  Barb.  120      247,  264 

Goddard  v.  Fulton,  21  Cal.  430  699 

Godfrey  v.  Chadwell,  2  Vern.  601       392 

V.  Townsend,   8  How.  Pr. 

398  459,  460 

Goelth  V.  White,  35  Barb.  76  583 

Goings  I'.  White,  33  Ind.  125  575 

Goldsmith  v.  Boersch,  28  Iowa,  351     603 
Goldsmid  v.  Stonehewer,   9   Hare, 

App.  38  395 

GoUer  v.  Felt,  30  Cal.  481  262 

Goncelier  v.  Font,  4  ]\Iinn.  13  316 

Good  V.  Blewit,  19  Ves.  336         436,  439 
I'.  Blewitt,  13  Ves.  397  305 

Goodall  V.  Mopley,  45  Ind.  355    301,  302, 

630 
Gooding  v.  McAllister,  9  How.  Pr. 

123  492 

Goodnight  v.  Goar,  30  Ind.  418     242,  252, 

253,  273 
Goodrich  ;;.    Milwaukee,   24   Wise. 

422  216 

Gordon  v.  Bruner,  49  Mo.  570     619,  796, 

805,  806,  808 

V.  Horsfall,  5  Moore,  393         304 

V.  Swift,  46  Ind.  208  780 

Gorham  v.  Gorham,  3  Barb.  Ch.  32     222 

Gorman  v.  Russell,  14  Cal  531     433,  435 

Gossom  V.  Badgett,  6  Bush,  97  349 

Gott  V.  Powell,"'41  Mo.  416       89,  98,  495 

Gottler  V.  Babcock,  7  Abb.  Pr.  392 

(n.)  812 

Gould  (;.  Glass.  19  Barb.  179  217 

V.  Gould,  29  How.  Pr.  441        286 

V.  Gould,  6  Wend.  263        225,  226 

V.  Hayes,  19  Ala.  438         310,  316 

V.  Williams,  9  How.  Pr.  51         597 

Goulef  u.  Asseler,  22  N.  Y.  225  134 

Gower  v.  Howe,  20  Ind.  396         365,  383, 

390 
Grace  v.  Terrington,  1  Coll.  3  306 

Gradwohl  v.  Harris,  29  Cal.  150  153, 

160,  467 
Graham  v.  Harrower,    18   How.  Pr. 

144  727 

V.  Poillon,  5  Duer,  697  592 

V.  Tiltbrd,  Stanton's   Code, 

98  820 

Grain  v.  Aldrich,  38  Cal.  514     77,  86,  87, 

153,  164 
Grannis  v.  Hooker,  29  Wise.  65  583 

Grant  v.  McCarty,  38  Iowa,  468  481, 

509,  528 


Grash  v.  Sater,  6  Iowa,  301  743 

Grattan  v.  Wiggins,  23  Cal.  16  220 

Graves  v.  Spier,  58  Barb.  349      101,  102, 
104,  177,  181,  184,  576 
Gray  v.  Coan,  23  Iowa,  344  589 

V.  Dougiierty,  25  Cal.  266  96, 

511 
V.  Durland.  50  Barb.  100  278 

V.  Fretwell,  9  Wise  186  726 

V.  Garrison,  9  Cal.  325  161 

V.  Palmer,  9  Cal.  616  411 

V.  Payne,  43  Mo.  203  89,  98, 

495 

V.  Schenck,  4  N.  Y.  460  398 

Greason  v.  Keteltas,  17  N.  Y.  491        612 

Green  v.  Breck,  10  Abb.  Pr.  42  434 

V.  Dixon,  9  Wise.  632  382, 

392 

V.  Gilbert,  21  Wise.  395     583,  585 

V.  Green,  69  N.  C.  294  336 

V.  Lake  Superior,  &c.  Co.,  46 

Cai.  408  645 

V.  Lyndes,  12  Wise.  404  293 

V.  Marble,  37  Iowa,  95        153,  161 
V.  Palmer,  15  Cal.  411  547 

V.  Putnam,  1  Barb.  500  420 

V.  Sisson,  2  Curtis,  171  316 

Greenfield  v.  Mass.  Mut.  Ins.  Co.,  47 

N.  Y.  430  213,  673,  694 

Greenwood  v.  Atkinson,  5  Sim.  419    378 
Gregory  v.  Gregory,  69  N.  C.  522       420 
V.  High,  29  Ind.  527  423 

Greither  r.  Alexander,  15  Iowa,  470  493 
Gridley  v.  Gridley,  24  N.  Y.  130  524 

Griffin  v.  Cox,  30  Ind.  242  819 

V.  Gritiin,  23  How.  Pr.  183        786 
Griffith  V.  Vanheytiinysen,  9  Hare, 

85  318 

Griggs  V  Staples,  2  De  G.  &  S.  572  313 
Grimes  v.  Duzan,  32  Ind.  361  785, 

813 
Grinned  v.  Buchanan,  1  Daly,  538 

83,84 

V.  Schmidt,  2  Sandf.  706      215, 

243 

Groat  V  Phillips,  6  N.  Y.  S.  C.,42      350 

Grocers'  Nat.  B'k  v.  Clark,  48  Barb. 

26  179,  181 

Grossman  v.  Lauber,  29  Ind.  618  820 
Grosvenor  v.  Allen,  9  Paige,  74  315 

V.   At.   Fire   Ins.    Co.,    1 

Bosw.  469  730 

Groves  v.  Marks,  32  Ind.  319  126 

r.  Tailman,  8  Nev.  178  548, 

568 

Guedici  v.  Boots,  42  Cal.  452  115 

Guernsey  v.  Am.  Ins.  Co.,  17  Minn. 

104  96,  106,  492 

Guiod  V.  Guiod,  14  Cal.  506  291 

Gulick  V.  Connely,  42  Ind.  134  654 

Gunn  V.  Madigaii,  28  Wise.  158  572,  590 
Gutchess  V.  Wliiting,  46  Barb.  139  607 
Guttraan  v.  Scaunell,  7  Cal.  455  284 

Gwaltney  v.  Cannon,  31  Ind.  227        579, 

583 


XXXIV 


TABLE   OP   CASES   CITED. 


H. 

Habicht  v.  Pemberton,  4  Sandf.  657 
245,  246, 
Hablitgel  v-  Latham,  35  Iowa,  550 

Hackett  v.  Scliad,  3  l?ush,  353 
Hackley  v.  Ognuin,  10  How.  Pr.  44 
Haddox  v.  Wilson,  3  Bush,  523 
Hadley  r.  Brown,  2  Kaiis.  416 
Hagaii  V.  Bui-fh,  8  Iowa,  809 

V.  Walker,  14  How.   (U.  S.) 
37 
Hapfgard  v.  Hay's  Adm'r,  13  B.  Mon. 

175 
Haight  V.  Badgelev,  15  Barb.  499 
V.  Green,  19  Cal.  113 
V.  Hayt,  19  N.  Y.  464      177, 

Hain  v.  North  West,  &c.  Co.,  41  Ind. 

196 
Haines  v.  Beach,  3  Joiins.  Ch.  459 
Haire  v.  Baker,  5  N.  Y.  357         113, 

119, 

Hale  V.  Omaha  Nat.  B'k,  49  N.  Y.  626 

591,  628,  630, 

r.  Walker,  31  Iowa.  344 

Haley  v.  Bagley,  37  Mo.  363 

Hall  r.  iEtna  Man.  Co.,  30    Iowa, 

215 

V.  Austin.  2  Call,  570 

V.  Cincinnati,  &c.  K.  K.,  1  Dis- 

nev,  58 
V.  Gale,"  14  Wise.  54 
V.  Hall,  38  How.  Pr.  97 
V.  Nelson,  23  Barb.  88  381 

r.  Olney,  65  Barb.  27 
V.  Plaine,  14  Ohio  St.  417     164, 


V.  Roberts,  61  Barb.  33 
Hallahan  r.  Herbert,  57  N.  Y.  409 
Hallett  V.  liallett,  2  Paige,  15      306, 
432,  435,  436 
Hallock  t'.  DeMunn,  2  N.  Y.  S.  C. 
350 
V.  Smith,  4  Johns.  Ch.  649 
Ham  V.  Greve,  34  Ind.  18 
Hamilton  v.  Wright,  37  N.  Y.  502 
Hamlin  v.  Wright,  23  Wise.  491 

398, 
Hammond  v.  Perry,  38  Iowa,  217 

r.  Terry,  3  Lans.  186 
Hamp  V.  Robinson,  3  DeG.  J.  &  S. 

97 
Hancock  i;.  Johnson,  1  Mete.  242 

r.  Ritchie,  11  Ind.  48 
Hanna  v.  Jctlersonville,  &c.  R.  R.,  32 

Ind.  113 
Hanson  i".  Vernon,  27  Iowa,  28 
Hardcastlo  v.  Smitlison,  3  Atk.  245 
Hat-dy  v.  Blazer,  29  Ind.  226         349, 
Hares  v.  Stringer,  15  Beav.  206     306, 
Harlan  v.  Edwards,  13  Ind.  430 


434 
118, 
120 
722 
743 
820 
284 
734 

392 

674 
734 
179 
181, 
184 

568 
392 
118, 
248 

631 
714 
417 

712 
407 

179 
821 
494 
385 
724 

170, 
214 
166 
150 

310, 
439 

369 
304 
714 
173 
315, 
399 
114, 
120 
819 

402 

484 
161 

735 
172 
416 
365 
307 
283 


Harlbut  v.  Post,  1  Bosw.  28  351 

Harlin  v.  Stevenson,  30  Iowa,  371  397 
Harlow  v.  Hamilton,  6  How.  Pr.  475  629 
Harney  v.  Charles.  45  Mo.  157  172 

V.  Dutcher,  15  Mo.  89  214 

V.  Indianapolis,  &c.   R.   R., 

32  Ind. 244  172 

Harpending  v.  Shoemaker,  37  Barb. 

270  619 

Harper  v.  Milwaukee,  30  Wise.  365     600 
Harrington  v.  Fortner,  58  Mo.  468      114 
V.  Higham,  15  Barb.  524 

338,  356 
Harris  v.  Averj%  5  Kans.  146 

V.  Burwell,  65  N.  C.  684 


500,  511 

199, 

777,  778 

V.  Shoutz,  1  Mont.  212  663 

V.  Vinyard,  42  Mo.  568      116,  120 

Harrison  v.  Barnby,  5  T.  R.  249  226 

V.  Juneau  B'k.,  17  Wise.  340 

106,  492 
V.  Martinsville,  &c.  R.  R., 

16  Ind   505  712 

V.  Steward,son,  2  Hare,  530 

315,  406,  416,  434 
Harrison  Co.    v.  McCarty,   27   Ind. 

475  172 

Harrod  v.  Burgess,  5  Rob.  449  465 

Harsh  v.  Morgan,  1  Kans.  293      319,  516 
Hart  V.  Coffee,  4  Jones  Eq.  321  423, 

428 

V.  Crawford,  41  Ind.  197      645,  725 

V.  Cundiff,  ib.  p.  61  484 

V.  Young,  1  Lans.  417  369 

Harter  v.  Criil,  33  Barb.  283  721 

Hartley  v.  Brown,  46  Cal.  201      127,  728 

Hartson  (-.  Hardin,  40  Cal.  264  735 

Hartwell  v.  luge,  14  Wise.  49  629 

Harvey  v.  Harvev,4  Beav.  215  310 

V.  Wilson,  44  Ind.  231  365 

Harwood  v.  Kirby,  1  Paiae,  469  420 

V.  Marye,  8  Cal  580      386,  389 

Hasbrouck  v.  Bunce,  3  N.  Y.  Sup. 

Ct.  309  261 

Hashragen  v.  Specker,  36  Ind.  413      372 
Haskell  v.  Moore,  29  Cal.  437  819 

Hathaway  v.  Toledo,  &c.   R.  R.,  46 

Ind.  25  707 

V.  Quinbv,   1  N.  Y.  S.  C. 

386  '  576,  590,  596 

Hatsall  V.  Griffith.  4  Tyr.  487  224 

Haughton  v.  Newberry,  69  N.  C.  456 

136,  347 
Hawk  V.  Thorne,  54  Barb.  164 
Hawkins  v.  Borland,  14  Cal.  413 


r.  Craig,  1  B.  Mon.  27 


179,  525 
499, 
707 
310, 
316 
V.  Hawkins,  1  Hare,  543  306 
Hay  V.  Short,  49  Mo.  139     752,  767,  805, 

806,  823 
Haycock  v.  Haycock,  2  Ch.  Cas.  124 

299,  301,  402 
Haydel  v.  Batcman.  2  La.  Ann.  755  465 
Haynes  v.  Harris,  33  Iowa,  516    278,  299 


TABLE    OF    CASES    CITED. 


XXXV 


Haywarfl  v.  Stearns,  39  Cal.  58    386, 
Haywood  r.  Ovey,  6  Mad.  113 
Hazard    v.   Agricultural    Bank,    11 

Kob.  314 
Hazleton  v.  Union  Bank,  32  Wise.  34 
589,  591, 
Heaston  i\  Cincinnati,  &c.  R.  R.,  16 

Ind.  -275  712, 

Heaton  ?'.  Dearden,  16  Beav.  147 
Heavenridge  v.  Mondy,  34  Ind.  28 
Heavilon  v.  Heavilon.  29  Ind.  509 
Hees  V.  Nellis,  1  N.  Y.  Sup.  Ct.  118 

247, 
Heimstreet  v.  Winnie,  10  Iowa,  430 

392, 
Heinmuller  v.  Gray,  13  Abb.  Pr.  n. 

s.  299 
Helm  V.  Hardin,  2  B.  Mon.  232 

Hembrock  v.  Stark,  53  Mo.  588 
Heninienway  i\  Stone,  7  Mass.  58 
Henderson  o.  Dickey,  50  Mo.  161 

96,  97,  98,  102,  126, 
Hendricks  v.  Decker,  35  Barb.  298 

Hendrickson  v.  Beers,  6  Bosw.  639 
Hendrix  v.  Mooney,  1  Bush   (Ky.), 
306 
V.  Robinson,  2  Johns.  Ch. 
283 
Hendry  v.  Hendry,  32  Ind.  349 

Henley  r.  Stone,  3  Beav.  355 
Henry  v.  Earl,  8  M.  &  W.  228 

V.  Henry,  17  Abb.  Pr.  411 
V.  Henry,  3  Robt.  614        786, 
V.  Marvin,  3  E.  D.  Smith,  7L 
Hereth  v.  Smith,  33  Ind.  514      155, 

Herrick  v.  Woolverton,  41  N.  Y.  581 

Herring  v.  Yoe,  1  Atk.  290 

Hewett  V.  Swift,  10  Am.  Law  Reg. 

505 
Heywood  v.  Buffalo,  14  N.  Y.  534 
Hibben  v.  Soyer,  33  Wise.  319 
Hibernia  Savings  Soc.  v.  Ordway,  38 
Cal.  679  484 

Hicbens  u.  Keliv,  2  Sm.  &  G.  264 
Hicks  V.  Dotv,  4  Busii,  420 
V.  Reigle,  32  Ind.  360 
V.  Slieppard,  4  Lans.  335 

111, 
V.  Whitmore,  12  Wend.  548 
Hicksville,  &c.  R.  R.  v.  Long  Island 

R.  R.,  48  Barb.  355 
Hier  v.  Grant,  47  N.  Y.  278  499, 

V.  Staples,  51  N.  Y.  136      335, 

Higgins  V.  Germaine,  1  Mont.  230 

583,  659, 
V.  Senior,  8  M.  &  W.  834 

V.  Wortel,  18  Cal.  330 
High  V.  Woilev,  32  Ala.  709 
HilU".  Adams,"  2  Atk.  39 


392 
428 

465 

594 

716 

300 
628 
129 

274 

385, 
393 

358 
308, 
406 
805 
325 
89, 
495 
698, 
726 
181 

435 

439 
4^3, 
819 
429 
690 
532 
811 
619 
158, 
715 
201 
311 

361 
102 
710 

485 
297 
163 
712 
110, 
784 
170 

785 
707 
369, 
370 
579, 
674 
170, 
215 
675 
316 
429 


Hill  V.  Barrett,  14  B.  Mon.  83      134,  136, 

547 
V.  Board  of  Supervisors,  &c.,  12 

N.  Y.  52  217,  364 

r.  Butler,  6  Ohio  St.  207        766,813 
V.  Davis,  3  N.  H.  384  619 

V.  Gibbs,  5  Hill,  56  260 

V.  Golden,  16  B.  Mon.  551  774 

V.  Marsh,  46  Ind.  218     244,  267,  270, 
333,  334 
V.  Perrott,  3  Taunt.  274  623 

V.  Supervisor,  10  Ohio  St.  621      604 
V.  Tucker,  1  Taunt.  7  224 

Hillman  v.  Hillman,  14  How.  Pr.  456 

285,  627 

Hills  V.  McRae,  9  Hare,  297  424 

V.  Nash,  1  Phil.  594  305 

V.  Sherwood,  48  Cal.  386     112,  299, 

314,  815 

Hilton  V.  Lothrop,  46  Me.  297  429 

V.  Warimj,  7  Wise.  492  160 

Hinckley  i'.  Smith,  51  N.  Y.  21  370 

Hinds  V.  Tweddle,  7  How.  Pr.  278       619 

Hinkle  v.  Davenport,  38  Iowa,  355     275, 

481,484,  528 

Hinman  v.  Bowen,  5  N.  Y.  Sup.  Ct. 

234  167 

Hoagland  v.  Han.  &  St.  Jo.  R.  R.,  89 

Mo.  451  488,  529 

Hobart  v.  Abbott,  2  P.  Wms.  648        429 
V.  Frost,  5  Duer,  672  248 

Hobbs  V.  Duff,  23  Cal.  596  820 

Hodge  V.  Sawyer,  34  Wise.  397  616 

Hodgman  v.  Chicago  &  St.  P.  R.  R., 

20  Minn.  48  173 

V.  Western  R.  R.,  7  How. 

Pr.  492  183 

Hodson  V.  Davis,  43  Ind.  258  872 

Hoffa  V.  Hoffman,  33  Ind.  172      803,  804 
Holbrook  v.  N.  J.  Zinc  Co.,  57  N.  Y. 

616  192 

Holdridge  v.  Sweet,  23  Ind.  118         365, 

383,  391 
Holgate  V.  Broome,  8  Minn.  243  818 

Holland  v.  Baker,  3  Hare,  68  406,  416 
Hollenbeck  v.  Clow,  9  How.  Pr.  289  742 
Hollingsworth  v.  State,  8  Ind.  257  283 
Holmes  v.  Williams,  16  Minn.  164  517, 
525,  590,  595,  596 
Holzbauer  v.  Heine,  87  Mo.  448  766, 

773 

Hook  V.  Craighead,  82  Mo.  405  716 

V.  Turner,  22  Mo.  833  710 

V.  White,  36  Cal.  290  697 

Hoover  v.  Donally,  3  Hen.  &  Munf. 

316  311 

Hope  Life  Ins.  Co.  v.  Taylor,  2  Robt. 

278  216 

Hopkins  v.  Gilman,  22  Wise,  481         612 

V.  Oriian,  15  Ind.  188  365 

Hopkinson  u.  Lee,  6  Q.  B.  971  225 

Hoppough  V.  Struble,  2  N.   Y.   Sup. 

Ct.  664  115 

Hopwood  V.  Patterson,  2  Oreg.  49       741 
Hord  y.  Chandler,  13  B.  Mon.  403  134, 484 


XXXVl 


TABLE   OP   CASES    CITED. 


Horn  V.  Luddington,  ?,2  Wise.  73  99, 

102,  547,  554,  565,  591 
V.  Volcano  Water  Co.,  13  Cal. 

62  461,  465 


Hornby  v.  Gordon,  9  Bosw.  656 


459, 
460 
182 
300 
426 
730 


Horner  v.  Wood,  23  N.  Y.  350 
Horsley  v.  Fawcett,  11  Beav.  565 
Horstkotte  v.  Menier,  50  Mo.  158 
Horton  v.  Kulilhifj-,  3  Nev.  498 
Hosley  v.  Black,  2bS  N.  Y.  438     334,  583, 

585 
Houghton  V.  Lynch,  13  Minn.  85         214 
V.  Towiisend,  8  How.  Pr. 

447  546 

House  V.  Dexter,  9  Mich.  246  413 

V.  Lowell,  45  Mo.  381  483,  485 

r.  Marshall,  18  Mo.  369  819 

Howard  r.  Sliores,  20  Cal.  277  820 

V.  Throckmorton,    48    Cal. 

482  660 

V.  Tirtkny,  3  Sandf.  695  546 

Howe  V.  Peckham,  10  Barb.  656   494,  511 

Howell  V.  Howell,  15  Wise.  55  735 

Howes  V.  Racine,  21  Wise   514  172 

Howland  v.  Fish,  1  Paitfe,  20  310 

r.  Xeedham,  10  Wise.  495   134, 

613 

Howse  V.  Moody,  14  Fla.  59        425,  492, 

515 
Hoyt  V.  McNeil,  13  Minn.  390  735 

V.  Thompson,  5  N.  Y.  320  177 


Hubbard  v.  Johnson   Co., 

130 
Hubbell  V.  Lereh,  58  N.  Y. 
V.  Medbury,  53  N. 


Iowa, 


172 

(     261,  516 

98        213, 

316 

U.Meigs,  50  N.Y.  480    358, 

V.  Skiles,  16  Ind.  138 

Hubble  V.  Yaughan,  42  Mo.  138 

Hubler  f.  Pullen,  9  Ind.  273 

Hudson  V.  Caryl,  44  N.  Y.  553         96,  97 

V.  Conim'rs,  &c.,  12  Kans. 

140 
V.  McCartney,  33  Wise.  331 
Hughes  V.  Davis,  40  Cal.  117 
Hugbsen  r.  Cookson,  3  Y.  &  C.  578 
Hulce  V.  Thompson.  9  How.  Pr.  113 
Hull  V.  Vreeland,  18  Abb.  Pr.  182 
Hume  V.  Dessar,  29  Ind.  112 
Humphreys  v.  Crane,  5  Cal.  173 

V.  Hoilis,  Jac.  73 
Hunt  V.  Acre,  28  Ala.  580 

V.  Cbapman,  5rN.  Y.  555    774 
V.  Peacock,  6  Hare,  361 
Hunter  v.  Comm'rs,  &e.,  10  Ohio  St. 
615 
V.  McCov,  14  Ind.  528 
V.  McLauuiiliii,  43  Ind.  38 
V.  Maeklew,  5  Hare,  238 
i;.  Mathes,  40  Ind.  356 
V.  Powell,  15  How.  Pr.  221 


530 
365 
114 
724 


319 
603 
117 
301 
532 
527 
628 
352 
311 
312 
822 
307 


214 
492 
716 
304 
699 
530, 
597 
Hurst  V.  Litchfield,  39  N.  Y.  377  583,  585 
Huson  f.  IMcKenzie,  Dev.  Eq.  463       306 


Huston  V.  Craighead,   23  Ohio   St. 

198  735 

V.   Stringham,  21  Iowa,  86     384, 
888,  389 
V.  Twin,  &c.  T.  Co.,  45  Cal. 

550  675 

Hutchings  v.   Castle,  48  Cal.   152     645, 

651 

V.  Moore,  4  Mete.  110        769 

V.  Weems,  35  Mo.  285       1G4 

Hutchinson  v.  Roberts,  67  N.  C.  223     307 

Hvnds  V.  Hays,  25  Ind.  31  597,  598 

Hyslop  V.  Randall,  4  Duer,  660  183 


Iliff  V.  Brazill,  27  Iowa,  131 
Indiana,  &c.  R.  R.  v.  MeKernan,  24 

Ind.  62  365, 

Indianapolis  F.  &  M.  Co.  v.  Herki- 
mer, 46  Ind. 142 
Indianapolis,  &c.  R.  R.  v.  Bullard, 

22  Ind.  448 
Indianapolis,  &c.  R.  R.  v.  Robinson, 

35  Ind.  380 
Indianapolis,  &c.   R.  R.   v.   Ruther- 

fonl,  29  Ind.  82  670, 

Ingraliam   v.   Disbrough,  47  N.   Y. 

421  187, 

Iowa,  &c.  li.  R.  V.  Perkins,  28  Iowa, 

281 
Ireland  v.  Nichols,  1  Sweeney,  208 
Ireson  v.  Denn,  2  Cox,  425 
Ireton  v.  Lewes,  Finch,  96 
Irish  ij.  Snelson,  16  Ind.  365 
Irvin  V.  Wood,  4  Robt.   138 ;    5  id. 

482  ;  51  N.  Y.  224 
Isham  i:  Davidson,  52  N.  Y.  237 


Isley  V.  Huber,  45  Ind.  421 
Ives  V.  Miller,  19  Barb.  196 

V.  Van  Epps,  22  Wend.  155 


715,  7 


819 

410 

711 

820 

568 

706 

190 

528 
83 
303 
305 
820 

360 
774, 
«05 
27 
81!) 
751 


Jackson  v.   Feather  River,  &e.  Co., 

14  Cal.  18  706 

V.  Fosbender,  45  Ind.  305       654 

V.  Rawlins,  2   Vern.   195     423, 

428 

V.  Whedon,  1  E.  D.  Smith, 

141  733 

Jackson  Sharp   Co.    v.   Holland,   14 

Flor.  384  645,  677 

Jacob  V.  Lucas,  1  Beav.  436  313 

Jacobs  V.  Hemsen,  12  Abb.  Pr.  390     727 
Jacot  V.  Boyle,  18  How.  Pr.  106  398 

James  v.  Clialmers,  6  N.  Y.  209  155 

V.  Emery,  5  Price,  529       224,  225 
Jamison  v.  Copher,  35  Mo.  483  484, 

530 
Jarvis  v.  Peek,  19  Wise.  74  767,  785 

Jaycox  V.  Caldwell,  51  N.  Y.  395        370 


TABLE    OF    CASES    CITED. 


XXXVll 


Jeffersonville,  &c.  R.  R.  v.  Dunlap, 

29  Ind.  426  670, 

Jeffersonville,  &c.  K.  E.  v.  Vancant, 

40  Iiul.  283  628, 

Jeniison  v.  Walsh,  30  Ind.  167 
Jenkins  v.  Long,  19  Ind.  28  714, 

V.  North  Car.  Ore  Dr.  Co., 

65  N.  C.  563 
V.  Smith,  4  Mete.  (Ky.)380 
V.  Steanka,  19  Wise.  126 
Jenks  V.  Opp,  43  Ind.  108 
Jennings  v.  Paterson,  15  Beav.  28 
Jesse  V.  Bennett,  6  DeG.,  M.  &  G. 

009  309, 

Jessup  V.  City  Bank,  14  Wise.  331 
Jewett  V.  Honey  Creek  D.  Co.,  39 

Ind. 245 
Joest  V.  Williams,  42  Ind.  565 
Johannesson  v.  Borsehenius,  35  Wise. 

131  132,  136,  605, 

Johnson  v.  Britton,  23  Ind.  105    334, 

V.    Chandler,    15    B.    Mon. 

584 
V.  Cuddington,  35  Ind.  43 

V.  Dicken,  25  Mo.  580 
V.  Gunter,  6  Bush,  534 
V.   Kent,  9  Ind.  252         780, 
V.  Kilgore,    39   Ind.   147 

583, 
V.   Knapp,  36  Iowa,  616 
V.  Miller,  47  Ind.  376 
V.  Monell,    13  Iowa,  300 

V.  Moss,  45  Cal.  515 

V.  Robinson,  20  Minn.  170 

591, 
V.   Sepulbeda,  5  Cal.  149 
V.   Strader,  3  Mo.  359 
V.   Tntewiler,  35  Ind.  353 
Johnston  v.  Bennett,  5  Abb.  Pr.  n.  s. 
331  181, 

V.  Neville,  68  N.  C.  177 

Jolly  V.  Terre  Haute,  &c.  Co.,  9  Ind. 
421 

Jones  V.  Cin.  Type  Foundry,  14  Ind. 
89 
V.  Feleh,  3  Bosw.  63 
V.  Goodchild,  3  P.  Wras.  33 
r.  Hoar,  5  Pick.  285 
V.  How,  7  Hare,  267 
V.  Jenkins,  9  Rob.  180 
r.  Jones,  3  Atk.  110 
V.  Moore,   42  Mo.  419      767, 
809,  814, 
V.  Palmer,  1  Abb.  Pr.  442 
V.  Rahilly,  16  Minn   320 
V.  Smitli,  2  Ves.  372 
V.  Steamship  Cortes,    17    Cal. 
487  134,  135,  506 

V.  VantrSss.  23  Ind.  533      455 

Jopp  V.  Wood,  2  DeG.,  J.  &  S.  323 

Jordan  v.  White,  20  Minn.  91 


700 

652 
129 
731 

628 
302 
660 
349 
402 

407 
493 

628 
715 

609 
383, 
392 

455 

699, 
727 
289 
772 
820 

370, 
584 
165 
733 

385, 
388 
604 

418, 
594 
262 
620 
372 

184 
455, 
456 

547 

712 
259 
309 
619 
402 
465 
403 
785, 
,  819 
628 
708 
303 

,  509 

,  456 

318 

165 


Joubert  v.  Carli,  26  Wise.  594      374,  590 
Judah  V.  Trustees,  &c.,  16  Ind.  56     810, 

814,  821 
V.  Univ.  of  Vincennes,  23  Ind. 

272  667 

Judd  V.  Mosely,  30  Iowa,  423  413 

V.  Youn<T,  7  How.  Pr.  79  459 

Justice  V.  Phillips,  3  Bush,  200    247,  265 


K. 

Kamm  v.  Harker,  3  Oreg.  208 
Kansas  City  Hotel  Co.  v.  Sigement, 

53  Mo.  176      ■ 
Kansas  Pac.  R.  R.  v.  MeBratney,  12 

Kans.  9 
Kantrowitz  v.  Prather,  31  Ind.  9.2 
Karnes  v.  Rochester,  &c.  R.  R.  Abb. 

Pr.  N.  s.  102 
Kasson  v.  People,  44  Barb.  347     358, 
Kavanaugh  v.  Janesville,  24  Wise. 

618 
Kay  V.  Whittaker,  44  N.  Y.  565 

392, 
Kave  V.  Fosbrooke,  8  Sim.  28 
Kays  V.  Phelan,  19  Cal.  128 
Kayser  v.  Sichel,  34  Barb.  84 
Keeler  v.  Keeler,  3  Stockt.  458     310, 
Keep  r.  Kaufman,  56  N.  Y.  332 
Keightley  v.  Watson,  3  Exch.  721 
Kellar  v.  Beelor,  5  Monr.  573 
Keller  v.  Blasdel,  1  Nev.  491 
V.  Hicks,  22  Cal.  457 
V.  Johnson.  11  Ind.  337 
V.  Tracy,  11  Iowa,  530 
Kelley  v.  Thornton,  56  Mo.  325 
Kellogg  V.  Baker,  15  Abb.  Pr.  286 
V.  Olmsted,   6     How.    Pr. 

487 
V.  Oshkosh,  14  Wise.  623 
V.  Schuyler,  2  Denio,  73 
V.  Sweeney,  1  Lans.  397 
Kelly  V.  Bernheimer,  3  N.  Y.  S.  C. 
140 
V.  Dee,  2  N.  Y.  Sup.  Ct.  286 
Kelsey  v.  Bradbury,  21  Barb.  531 

V.  Murray,  18  Abb.  Pr.  294 
Kelty  V.  Long,  4  N.  Y.  S.  C.  163 
Keniiard  v.  Sax,  3  Oresi.  263        371, 
Kennedy  v.  Eilan,  17  Abb.  Pr.  73 
V.  Shaw,  38  Ind.  474 
V.  Williams,  11  Minn.  314 


Kenner's   Syndic    v.    Halliday,    19 
Louis.  154 

Kent  V.  Aijard,  24  Wise.  378 
V.  Cantrall.  44  Ind.  452 
V.  Rogers,  24  Mo.  306 
V.  Snyder,  30  Cal.  666 

Kenyon  v.  Quinn,  41  Cal.  325      110 

Kerstetter  v.  Raymond,  10  Ind.  199 

Kettle  11.  Crary,  1  Paige,  417 
Killmore  v.  Culver,  24  Barb.  656 


349 

495 

128 
372 

409 
362 

289 
387, 
663 
310 
283 
621 
316 
530 
225 
306 
349 
525 
714 
434 
278 
743 

363 
172 
183 
214 

743 
114 
446 
459 
370 
733 
214 
708 
283, 
735 

464 
112 

773 
819 
714 
112 

583, 
585 
306 
155 


XXXVIU 


TABLE    OF    CASES    CITED. 


KinibiiU  V.  Darling,  32  Wise.  G75      574, 

5U1 

V.  Noyes,  17  Wise.  605    1G5-1G7 

V.  Spicer,  12  Wise.  668  216 

V.  Wiiitney.  15  Ind.  280         3fi2 

King  V.  Anderson,  20  Ind.  385  260 

V.  Conn,  25  Ind.  425  820 

V.  Cutts,  24  Wise.  625  221 

V.  Enteri)rise  Ins.  Co.,  45  Ind. 

43  548,571,507,598 

V.  Iloare,  13  M.  &  W.  409  224 

V.  Lawrenee,  14  Wise.  238  402 

V.  Martin,  2  Ves.  643  522 

V.  Orser,  4  Duer,  431  358 

V.  Talbot,  40  N.  Y.  76  404 

Kingsland  v.  Braisted,  2  Lans.  17       334, 

335,  351 
Kingsley  v.  Gilraan,  12  Minn.  515      655, 

673 
Kinnaman  i\  Pvle,  44  Ind.  275  372 

Kirk  V.  Clark,  Free.  Clia.  275  308 

V.  Young,  2  Abb.  Pr.  453  4-34 

Kirkpatriek  v.  State,  5  Ivans.  673         172 
Kittle  V.  Fremont,  1  Neb.  329  172 

V.  Van  Dyek,  1  Sandf.  Ch.  76     391 
Klonne  v.   Bradstreet,    7    Ohio    St. 

322  77,  120 

Klussman  v.  Copeland,  18  Ind.  306      353 
Knadler  v.  Sharp,  36  Iowa,  232  151 

Knarr  v.  Conaway,  42  Ind.  260  737 

Kneedler  I'.  Sternbergli,  10  How.Pr. 

67  721 

Kniffen  v.  McConnell,  30  N.  Y.  290     721 

Knight  V.  Knight,  3  P.  Wms.  333        378 

r.  Pocock,  24  Beav.  436  301 

Kniglitley  v.  Walls,  24  Ind.  205  820 

Knott  V.  Stephens,  3  Oreg.  269  411 

Knour  v.  Diek,  14  Ind.  20  780,  820 

Knowles  v.  Gee,  8  Barb.  300  546 

V.  Rablin,  20  Iowa,  101       384, 

392,  395,  429 

Knowlton  v.  Miekles,  29  Barb.  465     424 

Koenipel  v.  Shaw,  13  Minn.  488      759, 

804,  806 
Koenig  v.  Streckel,  58  N.  Y.  475  362 
Kowing  V.  Manly,  57  Barb.  479 ;  49 

N.  Y.  102  367 

Kramer  v.  Conger,  16  Iowa,  434  284 

V.  Rebman,  9  Iowa,  114  83 

Kuehn  v.  Wilson,  13  Wise.  104  591 

Kuhland  v.  Sedgwiek,  17  Cal.  123       663 
Knpt'er  v.  Sponhorst,  1  Kans.  75  3-56 

Kutz  V.  McGuire,  5  Duer,  660  807 


Lackey  v.  Vanderbilt,  10  How.  Pr. 

1-55  627 

Ladd  V.  James,  10  Ohio  St.  437  403 

La  Farge  v.  Halsey,  1  Bosw.  171  771 

Lafayette  v.  Fowler,  34  Ind.  140  172 
Lafayette,  &c.  R.  R.  i".  Ehman,  30 

Ind.  83  698 

Lain  v.  Shcpardson,  23  Wise.  224  708 

Lake  v.  Cruikshank,  31  Iowa,  395  712 


Lamb  V.  Brolaski,  38  Mo.  51  819 

Lamoreux  v.  Atlantic  Mut.  Ins.  Co. 

3  Duer,  680  597 

Lanipkin  v.  (^Insom,  10  Oliio  St.  450  338 
Lampman  v.  Hammond,  3  N.  Y.  S. 

C.  203  278 

Lanison  v.  Falls,  6  Ind.  309  158,  733 

Lancaster  v.  Gould,  46  Ind.  307  208, 

364 
Lancaster  Man.  Co.  v.  Colgate,  12 

Oliio  St.  344  744,  804 

Landau  v.  Levy,  1  Abb.  Pr.  376  531 

Landers  v.  Bolton,  26  Cal.  303  663 

V.  Douglas,  46  Ind.  522  733 

Lane  v.  Doty,  4  Barb.  -534  352 

V.  Drinkwater,   1  C.  M.  &  R. 

599  224 

V.  Gilljert,  9  How.  Pr.  150  721 

V.  Miller,  27  Ind.  534  501 

V.  Salter,  51  N.  Y.  1  349 

I'.  Schomp,  5  C.  E.  Green,  82     172 
V.  State,  7  Ind.  426  628 

V.  State,  27  Ind.  108  485,  515 

Lang  V.  Waring,  5  Ala.  446  305 

Langton  v.  Haggerty,  35  Wise.  150     722, 

727 
Lansdale   v.   Mitchell,   14   B.   Men. 

350  820 

Lansing  v.  Parker,  9  How.  Pr.  288  743 
Lapping  v.  Duffy,  47  Ind.  56  153,  164 
Large  v.   Van  Doren,   1   McCarter, 

208  303,  308,  428 

Larkin  v.  Noonan,  19  Wise.  82  613 

Earned  v.  Hudson,  57  N.  Y.  151         489, 

509,  525 
V.  Renshaw,  37  Mo.  4-58  422 

Larson  v.  Reynolds,  13  Iowa,  579  373 
Larue  v.  Hays,  7  Busii,  -50  569 

Larum  v.  Wilmer,  35  Iowa,  244  734 

Lash  r.  McCormick,  17  Minn.  403  773 
Lasher  v.  Williamson,  bo  N.  Y.  619  771 
Lathrop  v.  Godfrey,  6  N.  Y.  Sup.  Ct. 

06  196,  645,  773 

V.  Heacock,  4  Lans.  1  374 

Latlin  v.  McCarty,  41  N.  Y.  107     77,  96, 

97,493.511 

Laub  V.  Buckmiller,  17  N.  Y.  620    83, 86, 

96,  97,  493,  511 

Laughlin  v.  Greene,  14  Iowa,  02  219 

Lawley  v.  Walden,  3  Swanst.  142         300 

Lawson  v.  Barker,  1  Bro.  C.  C.  303     402 

V.  Plaff,  1  Handy,  449  77 

Lawrence  v.  Bank  of  the  Republic, 

35  N.  Y.  320  307 

V.  Vox,  20  N.  Y.  268  167 

V.  Martin,  22  Cal.  173  183 

V.  Montgomery,    37    Cal. 

183    -  260,  268,  484 

V.  Nelson,  21  N.  Y.  1.58       203 

V.  Rokes,  53  .Me.  110     305,  308 

Lazzard  v.  Wheeler,  22  Cal.  139         161, 

179 
Leabo  v.  Detrick,  18  Ind.  '414  627,  737 
Leach  v.  Leach,  3  N.  Y.  S.  C.  657      525, 

619 


TABLE    OF    CASES    CITED. 


XXXIX 


Leavenson   v.   Lafontane,   3    Kans. 

523  196,  199,  202 

Leavenworth   v.   Packer,  52    Barb. 

132  762,  803 

Ledda  v.  Maumus,  17  La.  An.  314  465 
Lediard  v.  Bnuc-lier,  7  C.  &  P.  1  690 

Ledwich  v.  McKim,  53  N.  Y.  307       192, 

607 
Lee  V.  Elias,  3  Sandf.  736  597 

V.  Simpson,  29  Wise.  333      484,  613 
Leese  v.  Sherwood,  21  Cal.  151  164 

Lefler  v.  Field,  52  N.  Y.  621  651,  714 
Leggett   V.   Mut.   Life  Ins.  Co.,   64 

Barb.  23  387 

Leigh  V.  Thomas,  2  Ves.  312  439 

Leighton  v.  Grant,  20  Minn.  345  715 

Leitch  V.  Wells,  48  N.  Y.  585  192 

Lemon  v.  Trull,  13  How.  Pr.  248  804 
Lenaghan  r.  Smitli,  2  Phil.  301  306,  307 
Lennox  v.  Eldred,  1  N.  Y.  S.  C.  140 ; 

65  Barb.  410  309,  374 

Lenox  v.  Reed,  12  Kans.  223  381 

Leonard  v.  Rogan,  20  Wise.  540    86, 102, 

612 

Leopold  V.  Van  Kirk,  27  Wise.  152     601 

LeRoy  v.  Shaw,  2  Diier,  626        356.  448 

Lestrade  v.  Bartle,  19  Cal.  660  117 

Letchford  r.  Jacobs,  17  La.  An.  79      465 

Leuty  V.  Hillas,  2  DeG.  &  J.  110         312 

Leveck  v.  Sliaftoe,  1  Esp.  468  225 

Levy  V.  Braiman,  39  Cal.  485  709 

V.  Weber,  8  La.  An.  439  465 

Lewis  V.  Covilland,  21  Cal.  178  185 

V.  Edwards,  44  Ind.  333     591,  670 

V.  Graham,  4  Abb.  Pr.  106        216 

V.  Greider,  51  N.  Y.  231  269 

V.  Henley,  2  Ind.  332  172 

V.  Shearman,  28  Ind.  427  820 

V.  Williams,  3  Minn.  151  334, 

339,  426 

Lexington,  &c.  R.  R.  v.  Goodman, 

5  Abb.  Pr.  493  408 

Leyde  v.  Martin,  16  Minn  38  655,  673 
Lightly  V.  Clouston,  1  Taunt.  113  623 
Lignot  V.  Redding,  4  E.  D.  Smith, 

285  762,  817,  822 

Linden  v.  Hepburn,  3  Sandf.  668  96 

Lindley  v.  Cross,  31  lud.  106      372,  407, 

517 
Liney  v.  Martin,  29  Mo.  28 
Linn  v.  Rugg,  19  Minn.  181 
Lipperd  v.  Edwards,  89  Ind.  165 


Litclifield  V.  Polk  Co.,  18  Iowa,  70 
Little  V.  Johnson,  26  Ind.  170 

V.  Virginia,  &c.  Water  Co.,  9 
Nev.  317 
Livesey  v.  Livesey,  30  Ind.  398 
Livingston  v.  Tanner,  12  Barb.  481 
Lloyd  V.  Archbowle,  2  Taunt.  324 

V.  Lander,  5  Mass.  282,  288 

Lockwood  V.  Bostwick,  2  Daly,  521 
Logan  V.  Hale,  42  Cal.  645 
Lomax  v.  Bailey,  7  Blajkf.  599    " 


516 
773 
252, 
254 
172 
334 

616 
710 
525 
225 
404, 
522 
182 
397 
586 


Lomax  v.  Hide,  2  Vern.  185  392 

Lombard  v.  Cowliam,  84  Wise.  486     110, 

112,  709,  728,  785 

Long  V.  Constant,  19  Mo.  320  161 

V.  Heinrich,  46  Mo.  603  152 

V.  Morrison,  14  Ind.  595  289 

Longendyke     v.     Longendyke,-    44 

Barb.  366  286 

Longley  v.  Hudson,  4  N.  Y.   Sup. 

Ct.  353  173 

Loomis  V.  Brown,  16  Barb.  325  239, 

268  272 
V.  Eagle   B'k.,  10  Ohio  St.' 

327  202 

V.  Ruck,  56  N.  Y.  462  370 

V.  Soule,  1  Minn.  175      597,  598 
Los  Angeles  Co.  u.  Babcock,-45  Cal. 

252  576 

Lord  V.  Baldwin,  6  Pick.  348  225 

V.  Underdunck,   1    Sandf.    Ch. 

46  311 

Love  V.  Oldham,  22  Ind.  51  804 

V.  Watkins,  40  Cal.  547  371 

Louisville,   &c.    Co.   v.    Murphy,   9 

Bush,  522  548,  552,  595,  630 

Louisville,  &c.  R.  R.  v.  Thompson, 

18  B.  Mon.  735  817 

Lovejoy  v.  Robinson,  8  Ind.  399     811,  820 

Lovensohn  v.  Ward,  45  Cal.  8  788 

Lower  v.  Denton,  9  Wise.  268  129 

Lowe  V.  Morgan,  1  Bro.  C.  C.  368       301 

Lowry  v.  Dutton,  28  Ind.  473  630 

V.  Harris,  12  Minn.  255  334 

V.  Hurd,  7  Minn.  356         821,  822 

V.  Shane,  34  Ind.  495  725 

Lubert  v.  Chauviteau,  3  Cal.  458        134, 

820 
Lucas  V.  N.  Y.  Cent.  R.  R.,  21  Barb. 

245  531 

Luke   V.   Marshall,    5  J.   J.   Marsh. 

356  264 

Lull  V.  Fox  &  Wise.  Imp.  Co.,  19 

Wise.  100  515 

Lumbert  v.  Palmer,  20  Iowa,  104        603 
Luse  V.  Oaks,  36  Iowa,  562  367 

Lynd  v.  Pickett,  7  Minn.  184  661 

Lytle  V.  Lytle,  37  Ind.  281  548,  571 

V.  Lytle,  2  Mete.  (Ky.)  127       152, 
163,  164,  365 


M. 


MeAbee  v.  Randall,  41  Cal.  136         769, 

770,  827 
McAdams   v.    Sutton,   24   Ohio   St. 

333  601 

McAdow  V.  Ross,  53  Mo.  199  743,  814 
McArdle  v.  McArdle,  12  ]\Iinn.  98  785 
McArthur  v.  Franklin,  15  Ohio  St. 

485;  16 ib.  193   874,  384, 
394 
V.  Green  Bay,   &e.    Can. 

Co.,  34  \Vise.  189       179, 

811,814 

McBeth  V.  Van  Sickle,  6  Nev.  134      169 


xl 


TABLE   OF   CASES    CITED. 


McBride  r.  Farmers'  B'k.,  2G  N.  Y. 

450  162 

McCabe  v.  Grey,  20  Cal.  509  201 

Mc(^)ll  V.  Yard,  1  Stockt.  358  428 

McCartliv    v.    Garraghty,    10   Ohio 

St.  438  493 

McCartney  r.  Welch,  44  Barb.  271      870 
McCartv  v.  Fremont,  23  Cal.  196         533 
V.  Roberts,  8  Ind.  150  729 

McCIane  v.  Wliite,  5  Minn.  178  112, 116 
McChntic's  Adm'r  v.  Cory,  22  Ind.      170, 

823 
McClurs  V.  Phillips,  49  Mo.  315  492 

McConihe  v.  Hollister,  19  Wise.  269 

769,  773,  784 
McCormick  v.  Lawton,  3  Neb.  449 

371,  426 
V.  Penn.  R.  R.,  49  N.  Y. 
303  291 

McCotter  y.  Lawrence,  6  N.  Y.  S.  C. 

392  297,  311,  312,  412 

McCown  V.  Simes,  69  N.  C.  159  492 

McCoy  V.  Sanson,  13  La.  An.  455       465 
V.  Yager,  34  Mo.  134  483 

McCrary  v.  Demina:,  38  Iowa,  527  773 
McCrory  v.  Parks,  18  Ohio  St.  1  88 

McCulloch's     Adm'r    v.     Hollings- 

wortii,  27  Ind.  115  303 

McCullough  V.  Lewis,  1  Disnev,  564  819 
McDaniel  v.  Carver,  40  Ind.  250  733 

McDonald  v.  Backus,  45  Cal.  262       426 
V.  Kneeland,  5  Minn.  352  154 
McBougall    V.    Walling,    48    Barb. 

364  181,  818 

McDowell  v.  Clark,  68  N.  C.  118        364 
v.  Laev,  35  Wise.  171         167 
McEIfresh  v.  Kirkendall,  36  Iowa, 

224  367 

McGlasson  v.  Bradford,  7  Bush,  250  590 
McGlothlin  v.  Hemery,  44  Mo.  350  494 
McGonigal     i'.     Colter,     32     Wise. 

614  338,  339,  628,  652 

McGovern  v.  Payn,  32  Barb.  83  608 

McGrath  v.  Balser,  6  B.  Mon.  141  615 
McGrew  v.  Armstrong,  5  Kans.  284  708 
McIIvaine  v.  Egerton,'^2  Robt.  422  773 
Mcintosh     V.    Ensign,    28     N.     Y. 

169  338.  356,  358,  360 

McKee  i'.  Judd,  12  N.  Y.  622      179 

V.  Lineberger,  60  N.  C.  217   214 

V.  Pope,  18  B.  Mon.  548    484 

McKeene  v.  McGarvey,  6  Cal.  497      373 

McKenzie  v.  Farroll,  4  Bosw.  192        808 

V.  L'Amoureux,  11  Barb. 

516  243,  432,  435 

McKethan  v.  Ray,  71  N.  C.  165  403 

McKignev   v.   Widekind,    6    Bush, 

107       "  805,  806 

McKillip     V.     McKillip,     8     Barb. 

552  221,  222 

McKinley  v.  Irvine,  13  Ala.  681  403 

Mclvinney  v.  McKinne^',  8  Oliio  St. 

423  735 

V.    West.    Stage   Co.,   4 

Iowa,  420  289 


McKnight  v.  Dunlop,  4  Barb.  36  619- 

V.    McCutchen,    27    Mo. 

436  129 

McKvring     v.    Bull,  16  N.    Y.  297 

687,  692.  719.  720,  724 
McLaclilan  ?'.  Staples,  13  Wise.  448  494 
McLane  r.  Bovee.  35  Wise.  27  709,  728 
McLaughlin  v.  McLaughlin,  16  Mo. 

242  516 

McLean  v.  Leach,  68  N.  C.  95  774 

McMahon  v.  Allen,  12  IIow.  Pr.  39  454 
McMaken  v.  McMaken,  18  Ala.  576  312 
McMaster  v.  Booth,  4  How.  I'r.  427  516 
McMillan  v.  Bovles,  14  Iowa,  107  172 
McMillen  v.  Gibson,  10  Louis.  517  464 
McMurphy  v.  Walker,  20  Minn.  382  662 
McNamara  v.    McNamara,   9    Abb. 

Pr.  18  787 

McXeadv  v.  White,  47  Cal.  481  100 

McNeil  V.  Tenth  Nat.  B'k,  55  Barb. 

59  188,  190-192 

McPhail  V.  Hyatt,  29  Iowa  137  652 

McPlierson  v.  Meek,  30  Mo.  345  773,  775 
McQueen  v.   Babcock,  13  Abb.  Pr. 

268  615 

McReady  v.  Rogers,  1  Neb.  124  358,  362 
McRoberts   v.    So.  Minn.  R.  R.,  18 

Minn. 108  247 

McVean  v.  Scott,  46  Barb.  379  358 

Maas  r.  Goodman,  2  Hilt.  275  187,  196 
Macdougal  v.  Maguire.  35  Cal.  274  811 
Maclay  v.  Love.  25  Cal.  367  371 

Madison  Co.  v.  Brown,  28  Ind.  161  172 
Madox  V.  Jackson,  3  Ark.  406  423,  428 
Masree  p.  Cutler,  43  Barb.  239  217 

Maguire  v.  Vice,  20  ]\Io.  429  77,  89.  103 
Magwire  i'.  Tyler,  47  Mo.  115  89,  96,  98 
Mahan  v.  Ross,  18  Mo.  121  819 

Maher  v.  Martin,  43  Ind.  314  372 

Mahon's  Adm'r  v.  Sawver,  18Ind.  73  712 
Makepeace  r.  Davis,  27  Ind.  352  334, 339 
Malin  v.  Malin,  2  John's  Ch.  238  296, 308 
Malone  v.  Stilwell,  15  Abb.  Pr.  421  514 
Manchester  v.  Sahler,  47  Barb.  155  369 
Mandlebaum  r.  Rusfell,  4  Nev.  551  358 
Mangles  v.  Dixon,  3  H.  of  L.  Cas.  702  188 
Manhattan  B.  &  M.  Co.  v.  Thomp- 
son, 58  N.  Y.  80 
Mann  v.  Fairchild,  2  Keves,  106 
V.  Marsh,  35  Barb.  68 
V.  Pentz,  3  N.  Y.  415 
Manning  v.  Gasharie,  27  Ind.  399 

V.  Monaghan,  23  N.  Y.  539 
V.  Tyler,  21  N.  Y.  567 


370 
102 
285 
274 
826 
359 
650. 
715,  780 

Maple  V.  Beach,  43  Ind.  51  242 

Maples  V.  Geller.  1  Nev.  233  352 

Marine  Bank  i'.  Jauncev,  1  Barb.  486  187 
Marks  v.  Marsh,  9  Cal." 96  373,  395 

Marley  v.  Smitli,  4  Kans.  183      698,  724,' 

725 

Marquat  v.  Marquat,  12  N.  Y.  336       86, 

102,  338,  494 

Marsh  v.  Brooklyn,  4  N.  Y.  Sup.  Ct. 

413  173 


TABLE   OF   CASES   CITED. 


xli 


Marsh  v.  Talker,  40  N.  Y.  562  607 

7-.  Gnmlrell,  11  Iowa,  474  352 

V.  Oliver,  1  MeCarter,  259         310 

Marshall  v.  Grav,  57  Barb.  414    607,  608 


V.  Moselev,  21  N.  Y.  280 


259, 
261 
709 
711 
226 


V.  Shafter,  32  Cal.  176 
Martin  v.  Am.  Ex.  Co..  19  Wise.  336 
V.  Coinpe,  1  Ld.  Raym.  340 
V.  Kunzmuller,  37  N.  Y.  396 

196,  198 
V.  Mattison,  8  Abb.  Pr.  3  527 
r.  Mobile  &  O.K.  R., 7  Bush, 

116  77 

V.  Noble,  29  Inrl.  216        383,  392 

V.  Piigh,  23  Wi.sc.  184      724,  806 

V.  Eichardson,  68  N.  O.  255     200 

Martindale  r.  Tibbetts,  16  Ind.  200     283 

Marvin  v.  Adamson,  11  Iowa,  371       357. 

448 

Marye  v.  Jones,  9  Cal.  335  820 

Mason  i\  Hey  ward,  3  Minn.  182         751, 

759,  805,  806 

1-.  Lord,  40  N.  Y.  476        188,  190 

V.  Weston,  29  Ind.  561      627,  737 

V.  AVhitely,  1  Abb.  Pr.  85         615 

Massie  v.  Stradford,  17  Ohio  St.  596  106, 

120 
Masters  v.  Freeman,  17  Ohio  St.  323 

252,  253 
]\rasterson  v.  Botts,  4  Abb.  Pr.  130  219 
IMasterton  v.  Hagan,  17  B.  Mon.  325  169 
Masnrj^  v.   Southworth,  9  Ohio  St. 

340  162 

Mather  r.  Hutchinson,  25  Wise.  27  709 
Mathewman's  Case,  L.  R.  3  Eq.  781  872 
ISIathcws  r.  Ferrea.  45  Cal.  51  730 

jNIatlock  V.  Todd,  25  Ind.  128  77,  78, 

785 
Mattoon  r.  Baker,  24  How.  Pr.  329  764 
Maule  V.  Duke  of  Beaufort,  1  Russ. 

349  3S1 

Mavrich  ?•.  Grier,  3  Kev.  52  371,  382,  395 
Maxon  r.  Scott,  55  N.  Y.  247  370 

]\raxwell  V.  Campbell,  45  Ind.  360        114 
V.  Farnam,  7  How.  Pr.  236    532 
Mav  V.  Hanson,  6  Cal.  642  352 

V.  Selby,  1  Y.  &  C.  235  309 

Mavhew  v.  Robinson,  10  How.  Pr. 

162  723,  741 

Mavo  V.  Madden,  4  Cal.  27  538 

Mavor  v.  Cnnliff.  2  N.  Y.  165  629 

V.  Mabie,  13  N.  Y.  151       750,  751 

V.  Parker  Vein  Co.,  8  Bosw. 

300  759,791,808 

Mead  )•.  Baanall,  15  Wise.  156  484 

V.  Mitchell,  17  N.  Y.  210  418,  421 
IMeaerher  v.  Morsran,  3  Kans.  372  588 
IMebane  r.  Mebane.  66  N.  C.  334  221 
]\Ieeeh  v.  Stoner,  19  N.  Y.  26  179,  181 
TNieeiran  v.  Gunsolis,  19  Mo.  417  368 

Meeker  v.  Claghorn,  44  N.  Y.  349      153, 

159 
Meeks  v.  Hahn,  20  Cal.  620  220 

Meier  v.  Lester,  21  Mo.  112  214 


Mendenhall  v.   Treadway,   44   Ind. 

131 

IMercein  v.  Smith,  2  Hill,  210       204, 

Merchants'    B'k    v:  Thompson,   55 

N.  Y.  7  384, 

Merchants'  &  Mech.B'k  v.  Hewitt,  3 

Iowa,  98 
Meredith  v.  Lacjkey,  16  Ind.  1 
Merrick  v.  Brainard,  38  Barb.  574 

V.  Gordon,  20  N.  Y.  93    762, 
Merrill  v.  Green,  55  N.  Y.  270      167, 
V.  Grinnell,  30  N.  Y.  594 
V.  Plainfield,  45  N.  H.  126 
Merritt  v.  Bricrss,  57  N.  Y.  651 
V.  Gliddon,  39  Cal.  559 
V.  Merle,  ib.  257 
V.  Seaman,  6  N.  Y.  168 
V.  Walsh,  32  N.  Y.  685 
V.  Wells.  18  Ind.  171 
Merwin  v.  Ballard,  65  N.  C.  168 
Mewherter  v.  Price,  11  Ind.  199 
Meyer  v.  Amidon,  45  N.  Y.  169 
V.  Lowell,  44  Mo.  328 
V.  McLean,  1  Johns.  509 
Meyers  v.  Field,  37  Mo.  434      77,  78 
93,  102, 
Micheli'.  Sheriff,  &c.,23  La.  An.  53 
Micklethwait  v.  AVinstanley,  13   W. 

R.  210 
Miles  V.  Darnford,  2  DeG.  M.  &  G. 
641 
V.  Lingerman,  24  Ind.  385 
V.  Smith,  22  Mo.  502  382, 

Miller  r.  Bear,  3  Paifre,  467 

V.  Florer,  15  Ohio  St.  149 

202 
V.  Fulton,  47  Cal.  146 
V.  Gaither,  3  Bush,  152 
V.  Hollinafsworth,     36     Iowa, 

163 
V.  Hunt,  3  N.  Y.  S.  C.  762 
V.  Van  Tassel,  24  Cal.  458 


204, 
247, 


165, 
646, 


372 

774 

393 

161 
827 
180 
775 
196 
180 
172 
706 
583 
465 
774 
264 
302 
442 
158 
607 
166 
647 
89, 
103 
465 

402 

313 
709 
389 
411 
165, 
819 
112 
820 


V.  Warmincton,  1  J  &  W.  484 
V.  White,  6  N.  Y.  S.  C.  255 
Milligan  v.  Poole,  35  Ind.  64 
IMilliken  v.  Carv.  5  How.  Pr.  272 
Mills  V.  Ladbrooke,  7  M.  &  G.  218 
r.  Malott,  43  Ind.  248 
V.  JMurrv,  1  Neb.  327 
V.  Rice,'3  Neb.  76  591,  593, 

V.  Van  Voorhies,  20  N.  Y.  415 
382,  383, 
Milwaukee  &  M.  R.  R.  v.  Milwaukee 

&  W.  R.  R.  20  Wise.  174 
Minier  ?•.  Minier,  4  Lans.  421 
Minn.  Oil  Co.  v.  Palmer,  20  Minn. 

468 
Minturn  v.  Main,  7  N.  Y.  220 
Mitchell  V.  B'k  of  St.  Paul,  7  Minn. 
252     334,  839,  406,  410, 
V.  Milwaukee.  18  Wise.  92 
V.  O'Neale,  4  Nev.  504    455, 
V.  Smith,  32  Iowa,  484 
Mix  V.  Fairchild,  12  Iowa,  351     357, 


371 
370 
134, 
185 
300 
630 
422 
93 
225 
268 
151 
736 

394 

184 
286 

173 
214 

494 
172 
4.56 
371 

448 


xlii 


TABLE    OF    CASES    CITED. 


Moberly  v.  Alexander,  19  Iowa,  1G2  813 
Mobile  V.  Wiirincr,  41  Ala.  1^9  172 

Modlin  V.  Nortli-west  T.  Co.,  48  Ind. 

492  652 

MoftUt  !'.  Farquharson,  2  Bro.  C.  C. 

S38  305 

V.  Van  Doren,  4  Bosw.  G09     788, 

812 

Moffet  V.  Sackett,  18  N.  Y.  522  753 

Mole  V.  Smith,  Jacob,  490  411 

Molineux    v.    Powell,    3    P.    Wms. 

2G8  (n.)  311 

Monfort  v.  Hughes,  3  E.  D.  Smith, 

591  361 

Montgomerie  v.  Marquis  of  Bath,  3 

Ves.  560  .  801 

Montgomery   v.  McEwen,  7    Minn. 

351  96,  509 

V.  Shockey,  37  Iowa, 

107  601 

V.  Sprankle,    31     Ind. 

113  372 

Montour  v.  Purdy,  11  Minn.  401  655 

Moomey  v.  Maas,  22  Iowa,  380  384,  393 
Mooney  v.   Hudson  River  R.  R.,  5 

Robt.  548  358 

Moore  v.  Beauchamp,  5  Dana,  70  307 
V.  Caruthers,  17  B.  Mon.  669  823 
V.  Gleaton,  23  Geo.  142  310 

V.  Lowry,  25  Iowa,  336  153 

V.  Mayor,  8  X.  Y.  110  184 

V.  Metrop.  Nat.  Bank,  55  N.Y. 

41  194 

V.  Moberly,  7  B.  Mon.  299       428 

V.  Moore,  47  N.  Y.  467  286 

V.  Noble,  53  Barb.  425      605,  607, 

608,  609 

V.  Smith,  10  How.  Pr.  361         510 

IVIoorehead  v.  Hyde,  38  Iowa,  382       216 

Moorman  v.  Collier,  32  Iowa,  138       151, 

169,  182 
Moran  v.  LeBlanc.  6  La.  An.  113  465 
More  V.  Massini,  32  Cat.  590  179,  526 
Moreau  v.  Detchemendy,  41  Mo.  431 

89,  98,  495 
V.  Moreau,  25  La.  An.  214      465 
Morehead  v.  Halsell,  Stanton's  Code, 

96  804 

Morehouse  '-.  Ballou.  16  Barb.  289  352 
Morgan  v.  Hawkeye  Ins.  Co.,  37  Iowa 

359  713 

V.  Morgan,  2  Wheat.  290        311 

V.  Reid,  7  Abb.  Pr.  215  213 

Morley  v.  Morley,  25  Beav.  253  301 

Mornan  (;.  Carroll,  35  Iowa,  22     246,  334 

jVIorrell   c.    Irving   Eire   Ins.  Co..  33 

N.  Y.  429  355,  724,  726 

Morret  v.  Westerne,  2  Vern.  663  392 
Morris  r.  Wiieeler,  45  N  Y.  708  292,  387 
Morrison  v.  Lovejoy,  6  Minn.  319       751, 

759 

V.  Rogers,  2  111.  317  619 

Morrow  v.  Lawrence,  7  Wise.  574       403 

Morrow's  Assignees  v.  Bright,  20  Mo. 

298  196,  199 


Morse  v.  Oilman,  16  Wise.  504  589.  590, 

591,  592 

V.  Morse,  42  Ind.  365         403,  424 

V.  Sadler,  1  Cox,  352  310 

Mortland  r.  llolton,  44  Mo.  58  819 

Morton  v.  C^oiKn,  29  Iowa,  235  674 

V.  Green,  2  Neb.  441  127 

V.  Morton,  10  Iowa,  58  652 

V.  Waring's     Heirs,     18    B. 

Mon.  72  660 

V.  Weil,  11  Abb.  Pr  421  398 

Moss  V.  Warner,  10  Cal.  296  373,  395 
Mott  V.  Burnett,  2  E.  D.  Smith,  50  742 
Moulton  V.  Orton,  5  Barb.  286  358 

V.  Walsh,  30  Iowa,  361  736 

Movan  v.  Havs,  1  Johns.  Ch.  339  404 
Mowry  v.  Hill,  11  Wise.  146  79,  83 

Mudgett  V.  Gager,  52  Me.  541  305,  308 
Muiri).  Gibson,  8  Ind.  187  335,  383, 

389,  403 
MulhoUand  r.  Rapp,  50  Mo.  42  483,  485 
Mullendore  v.  Scott,  45  Ind.  113  654, 818 
Munch  V.  Cockerell,  8  Sim.  219  316, 

403, 404,  407 
Murden  v.  Priment,  1  Hilt.  75  750,  811 
Murphv  V.  Wilson,  44  Mo.  313  358 

Murray  v.  Blackledge,  71  N.  C.  492     128 
V.  Catlett,   4    Greene  (la.), 

108  386,  388 

V.  Hay,  1  Barb.  Ch.  59     243,  317 
Musselman  v.  Cravens,  47  Ind.  1         216 
V.  Galligher,  32  Iowa,  383 

290,  367,  775,  781 

Muzzy  V.  Ledlie,  23  Wise.  445  627 

Myers  v.  Burns,  35  N.  Y.  269  803 

V.  Davis,  22  N.  Y.  489      186,  196, 

198 

V.  Machado,  6  Abb.  Pr.  198    219, 

248 

V.  State,  47  Ind.  293  353 

Mygatt  V.  Wilcox,  1  Lans.  55  350 

Myndesre  v.  Snook,  1  Lans.  488         774, 

777,  778 


N. 


Naglee  v.  Minturn,  8  Cal.  540  820 

V.  Palmer,  7  Cal.  543  820 

Nash  V.  McCauley,  9  Abb.  Pr.  159      627 

V.  St.  Paul,  11  Minn.  174     692  731 

National    Bank  v.   Green,  33  Iowa, 

140  627,  737 

National  Fire  Ins.  Co.  v.  McKay,  21 

N.  Y.  191  763 

Natoma  Water  Co.   v.   Clarkin,  14 

Cal.  544  527 

Nave  ".  King,  27  Ind.  356  172 

Neal  V.  Lea,  64  N.  C.  678  777,  778 

Nelson  v.  Brodhack,  44  Mo.  596      709, 

748 
V.  Hart,  8  Ind.  293  333,  363,  402 
V.  Johnson,  18  Ind.  329  365 

V.  Murray,  23  Cal.  338  674 

V.  Nixon,"  13  Abb.  Pr.  104        213 


TABLE    OF    CASES    CITED. 


xliii 


Nevada,  &c.  Canal  Co. 

Cal.  282;  48  Cal.  180 

Newbery  v.  Garland,  31  Barb.  121 

Newcomb  v.  Dewey,  27  Iowa,  381 


Kidd,  37 

483 
285 
384, 
392 

V.  Horton,  18  Wise.  566     313, 

319,  428,  436 

Newell  V.  Roberts,  54  N.  Y.  677  370 

V.  Salmons,  22  Barb.  647     730,  780 

New  Entj.,  &c.  Bank  v.  Nevvi)ort  St. 

Fac.  6  H.  I.  154  378 

New  Haven,  &c.  Co.  v.  Quintard,  6 

Abb.  Pr.  N   S.  128  706 

Newkirk  v.  Neild,  19  Ind.  194  817 

New  London  v.  Brainard,  22  Conn. 

552  172 

Newman  v.  Home  Ins.  Co.,  20  Minn. 

422  417 

V.  Otto,  4  Sandf.  668  629 

V.  Springfield  Ins.  Co.,  17 

Minn.  123  166,  660 

Newton  v.  Allis,  12  Wise.  378  613 

New  York  Cent.  Ins.  Co.  v.  Nat.  Pro. 

Ins.  Co.,  14  N.Y.  85  83,86,117 

New  York  Ice  Co.  v.  North-west.  Ins. 
Co.,  23  N.  Y.  357  75, 83, 86,  87,  96, 

101,  492,  511 
New    York    Ice    Co.   v.  Parker,   8 

Bosw.  688  775 

N.  Y.  &  N.  H.  K.  R.  V.  Schuyler,  17 

N.  Y.  592  338,  399,  416,  498 

Newton    v.  Earl    Egmont,  4     Sim. 

574  395 

V.  Earl  of  Egmont,  5  Sim 
130 
Nicholl  V.  Williams,  2  M.  &  W.  758 
Nichols  V.  Boerum,  6  Abb.  Pr.  290 
V.  Burton,  5  Bush,  320 
V.  Michaels,  23  N.  Y.  264 


V.  Randall,  5  Minn.  304 


416 

689 
804 
349 
347, 
360 
339, 
382,  390 

Nightingale  v.  Scannell,  6  Cal.  506  266 
Nill  V.  Jcnkinson,  15  Ind.  425  172 

Nininger  i\   Board  of  Comm'rs    10 

Minn.  133  283 

Noble  V.  Burton,  38  Ind.  206  583 

Noe  V.  Cliristie,  51  N.  Y.  270  213 

Noland  v.  Turner,  5  J.  J.  Marsli.  179  306 
Nolle  V.  Thompson,  3  Mete.  121  805,  814 
Noonan  v.  Orton,  21  Wise.  283  98,  183 
Norden  v.  Jones,  33  Wise.  600    620,  805, 

820 
Norris  v.  Amos,  15  Ind.  365  699,  715,  726 
Norris's  Heirs  u.  Ogden's  Executors, 

11  Martin,  455  464 

North  V.  Bloss,  30  N.  Y.  374  351 

V.  Bradway,  9  Minn.  183  398, 

399,  493 

North  Car.  Land  Co.  v.  Beatty,  69 

N.  C.  329  512,  517 

Northrup  v.  Miss.    Valley  Ins.  Co., 

47  Mo.  435  694,  716,  733 

Norton  v.  Foster,  12  Kans.  44  196,  199 
Norval  v.  Rice,  2  Wise.  22  283 


Noyes  v.  Sawver,  3  Vt.  160  301 

Nudd  V.  Thompson,  34  Cal.  39  743 


o. 


Gates  V.  Gray,  66  N.  C.  442  548 

V.  Kendall,  67  N.  C.  241     601,  605, 

616 

Oatman  v.  Goodrich,  15  Wise.  589      370 

Oberlander  v.  Spiess,  45  N.  Y.  175      607 

O'Blenis  v.  Karing,  57  N.  Y.  649  771 

O'Brien  v.  McCann,  58  N.  Y.  373        722 

V.  Police  Jury,  2    La.  An. 

355  465 

V.  St.  Paul,  18  Minn.  176  604 
O'Connor  v.  Koch,  56  Mo.  253  597,  598 
O'Dailey  v.  Morris,  31  Ind.  Ill  372 

Oechs  V.  Cook,  3  Diier,  161  629 

Offey  V.  Jenny,  3  Cb.  Rop.  92  309,  402 
Ogden  V.  Coddington,  2  E.  D.  Smith, 

317  762 

V.  Prentice,  33  Barb.  160     196, 198 

Ogilvie  V.  Lightstone,  1  Daly,  129       820 

Ogle  V.  Clough,  2  Duv.  145  398 

Ohio  &  Miss.  R.  R.  v.  Hemberger,  43 

Ind.  462  670 

Ohio  &  M.  R.  R.  V.  Tindale,  13  Ind. 

366  289 

Olcott  V.  Carroll,  39  N.  Y.  436  589 

Oldham  v.  Collins,  4  J.  J.  Marsli.  50  306 
Oliver  v.  Putnam  Co.,  24  Ind.  514  172 
Olmstead  v.  Supervisors,  24  Iowa,  33  172 
Onson  y.  Cown,  22  Wise.  329  116 

Ord  V.  McKee,  5  Cal.  515  213 

Ormsby  v.  Douglas,  5  Duer,  665  743 

Oroville,  &c.    R.  R.  v.  Supervisors, 

37  Cal.  354  714 

Ortley  v.  Messere,  7  Johns.  Ch.  139  222 
Orton  V.  Noonan,  19  Wise.  350  629,  709 
Osborn  v.  Bell,  5  Denio,  370  622,  623 
Osborne  v.  Endicott,  6  Cal.  149  710 

V.  Harper,  5  East,  225  226 

V.  Taylor,  12  Gratt.  117  310 
Osbourne  v.  Fallows,  1  R.  &.  M  741     395, 

428 
Osgood  V.  De  Groot,  36  N.  Y.  348       203 
V.  Laytin,  5  Abb.  Pr.  n.  s.  1 

274,  409,  416 
V.  Ogden,  4  Keyes.  70  203 

Ostrom  V.  Bixby,  9  How.  Pr.  57  743 

O'Toole   V.  Garvin,   3  N.  Y.  S.  C. 

118  731 

Owen  V.  Cawley,  36  N.  Y.  600  370 

V.  Cooper,  46  Ind.  524  628 

V.  Frink,  24  Cal.  171  311 

V.  Owen,  22  Iowa,  270  292 

V.  State,  25  Ind.  107  353 

Owsley  V.  Case,  16  Wise.  606  370 


Packard  v.  Slack,  32  Vt.  9  495 

V.  Snell,  35  Iowa,  80  604 


xliv 


TABLE   OP   CASES   CITED. 


PacUlon  V.  Williams,  1  Robt.  340 

Pad  wick  v.  Piatt,  11  Beav.  503 

Page  i\  Ford,  12  Ind.  46 

Paige  V.  Fazackcrlv,  otJ  Barb.  892 

V.  Willett,  m  X.  Y.  31 
Paine  v.  Hunt,  40  Barb.  75 
Palen  v.  ]5uslinell,  4(j  Barb.  24 

V.  Lent,  5  Bosw.  713 
Palk  V.  Lord  Clinton,  12  Ves.  48 

304,  429, 

Palmer  v.  Davis,  28  N.  Y.  242    246, 

250,  255, 

V.  Earl  of  Carlisle,  1  S.  &  S. 

423  ,  SOI, 

V.  Fort     Plain,     &c.      Plank 

R.  Co.,  11  N.  Y.  376 

V.  Yasrer,  20  Wise.  91 
Pancoast  r.  Biirnell,  32  Iowa,  394 
Parke  v.  Kiihani,  8  Cal.  77 
Parker  v.  Berry,  12  Kans.  351 

V.  Fuller,  1  R.  &  My.  656 


V.  Jackson, 16  Barb.  33 

V.  Laney,  58  N.  Y.  469 
V.  Tliomas,  19  Ind.  213 
Parmelee  v.  Egan,  7  Paige,  610 
Parrott  v.  Hughes,  10  Iowa,  459 


338, 
356 


Parshall  v.  Moody,  24  Iowa,  314 
Parsley  v.  Nicholson,  65  N.  C.  207 
Parsons  v.  Nasli,  8  How.  Pr.  454 

V.  Neville,  3  Bro.  C.  C.  365 
Patchin  v.  Peck,  38  N.  Y.  39 
Paterson  v   Long,  5  Beav.  186 
Paton  i\  JNIurray,  6  Paige,  474 
Patterson  v.  Clark,  20  Iowa,  429 
Pattison   '•.    IJichards,  22   Barb.  143 

762, 
Patton  V.  Kinsman,  17  Iowa,  428 
Paul  V.  Fulton,  25  Mo.  156 
Pavisich  V.  Bean,  48  Cal.  364       335, 
Payne  v.  Treadwell,  16  Cal.  220 

Peabody  r.  Beach,  6  Duer,  53 

V.  Bloomer,  5  Duer,  687 

V.  Wash.,  &c.  Ins.  Co.,  20 
Barb.  339 
Peacock  /•.  Monk,  1  Ves.  Sen.  127 
?•.  Penson,  11  Beav.  355 
Peak  V.  Lemon,  1  Lans.  295  367, 

Peake  v.  Ledger,  8  Hare,  313 
Pearce  o.  Ferris's   Ex'ors,  10  N.  Y. 
280 
r.  Hitchcock,  2  N.  Y.  388 
Pearkes  (■.  Freer,  9  Cal.  642 
Pearson  i\  Cnnimings,  28  Iowa,  344 
Pease  v.  Hannali,  3  Oreg.  301 

V.  Rusii,  2  Minn.  107 
Peck  V.  Elder,  3  San<lf.  126 

V.  Newton,  46  Barb.  173    77, 88 


153, 
170 

297 
773 
217 
630 
774 
504, 
510 
515 
303, 
,521 
248, 
285 

428 

211, 
218 
395 
290 
260 
735 
304, 
392 
352, 
,446 
i,97 
628 
315 
385, 
392 
408 
601 
779 
305 
247 
311 
887 
708 

811 
371 

406 
583 
134, 
135 

779 
772, 
779 

246 
314 
311 
368 
309 

345 
268 
528 
161 
716 
161 
317 
127 


Peck  !K  School    District    No.   4,   21 

Wise.  5Hi  318 

Pecker  v.  Cannon,  11   Iowa,  20  852 

Peckliam  v.  North   Parish,  16  Pick. 

274  324 

Peddicord  v.  Wiiittam,  9  Iowa,  471 

357,  448 
Peel  V.  Elliott,  7  Abb.  Pr.  433  218 

Pelly  V.  Bowver,  7  Bnsh,  513       239,  278 
Pelton  V.  Farmin,  18  Wise.  222  395 

Penn.  Coal  Co.  v.  Del.  &  Hud.  Canal 

Co.,  1  Keves,  72  101 

Penny  v.  Pennv,  9  Hare,  39  407 

V.  Watts,  2  Phil.  149  298 

People  V.  Albany,  &c.  R.  R.,  57  N.  Y. 

•    161  105,  173 

V.  Brandreth,  3  Abb.  Pr.  n.  s. 

224  771 

w.  Clark,  21  Barb.  214  215 

V.  Comm'rs,  &c.,  54  N.    Y. 

276  567,  629 

V.  Cram,  8  How.  Pr.  151  780 

V.  Crooks,  53  N.  Y.  648  248,  257 
V.  Edwards,  9  Cal.  286  445,  447 
V.  Fields,  58  N.  Y.  491  173 

V.  Intrersoll,  58  N.  Y.  1  173 

-  r.  Jenkins.  17  Cnl.  500  352 

V.  Kendall.  25  Wend.  399  621 

V.  Laws,  3  Abb.  Pr.  450  214 

V.  Love,  25  Cal.  520  447 

V.  Mavor,  32  Bnrb.  102  172 

V.  Norton,  9  N.  Y.  176  215 

V.  Ryder,  12  N.  Y.  433       93,  547, 
548,  565,  591 
V.  Sexton,  37  Cal.  532  467 

V.  Sherwin  2  N.  Y.  Sup.  Ct. 

538  173 

V.  Talmase,  6  Cal.  256  467 

V.  Tioga  Co.,  19  Weiul.  73        177 

V.  Townsend,  37  Btirb.  520       215 

Perkins  v.  Ermel,  2  Kans.  325  698 

y.  Lewis,  24  III.  208  172 

V.  Perkins,  62  Ba-b.  531    286,  370 

V.  Rogers,  35  Ind.  124  735 

Perry  v.  Chester,  12  Abb.  Pr.  n.  s. 

131  773,  780 

V.  Knott,  4  Beav.  179  404,  407 

v.  Knott,  5  Beav.  293  307 

V.  Seitz,  2  Dnv.  122  364,  365 

V.  Turner,  55  Mo.  418         349,  365 

I'.  Whitaker,  71  N.  C.  477  436 

Person  v.  ^lerick,  5  Wise.  231      304,  393 

r.  Warren.  14  Barb.  488     221,  222 

Peters  w.  Jone<*,  35  Iowa.  512        312,  414 

V.  St.  LoHis,  &c.  R.  R.,  24  Mo. 

586  161 

Petersen  v.  Chemical  Bank,  32  N.  Y. 

21  162 

Peto  V.  Hammond,  29  Beav.  91  381 

Petre  v.  Duncombe,  7  Hare.  24  311 

Petrie  v.  Burv,  3  B.  &  C.  353  225 

V.  Petrie,  7  Lans.  90  304,  306. 

404,  423 
Pettibone  v.  Edward*.  15  Wise.  95  302 
Petty  V.  Malier,  14  B.  Mon.  246  284 


TABLE    OF    CASES   CITED, 


xlv 


Petty  V.  Malier,  15  B.  Mon.  591         ,106, 

116 
Peyton  v.  Kose.  41  Mo.  257  89,  98,  495 
Pfiffner  v.  Kia])tel,  28  Iowa,  27  548 

Phalen  v.  Diimee,  4  E.  D.   Smith, 

379  "  357, 448 

Pharis  v.  Carver,  13  B.  Mon.  236         526 

Plielps  V.  Huffliej!,  1  La.  An.  820  465 

V.  AVait,  30  N.  Y.  78  357,  361 

Phillips  V.  Gorham,  17  N.  Y.  270  83, 

86,  99,  100,  112, 128,  493,  511 

V.  Jarvis,  19  Wise.  204  724 

V.  Van    Schaick,    87    Iowa, 

229  167,  604 

Phillipson  v.  Catty,  6  Hare,  26        ^    308 
Phoenix  Bank  v.  Donnell,  40  N.  Y. 

410  248,  733 

Phoenix  v.  Lamb,  29  Iowa,  852  645 

Pickering  v.  Miss.  Vallev  Nat.  Tel. 

Co.,  47  Mo.  457 
Pico  I'.  Cuvas,  47  Cal.  174 
Pier  V.  Finch,  29  Barb.  170 

V.  Heinrichoflen,  52  Mo.  333 


Pierce  v.  Faunce,  47  Me.  507 

Piercy  v.  Sabin,  10  Cal.  22 

Pierson    v.     Robinson,     3     Swanst. 

139  (n.) 
Pike  V.  King,  16  Iowa,  49 
Pinckney  ;-•.  Keyler,  4  E.  D.  Smith, 

469 
Piser  V.  Stearns,  1  Hilt.  86 
Pitcher    v.    Hennessey,    48    N.    Y. 

415 
Platner  v.  Patchin,  19  Wise.  383 
Piatt  V.  Stout,  14  Abb.  Pr.  178 
Poehhnan  c.  Kennedy,  48  Cal.  201 
Pomeroy  v.  Benton,  57  Mo.  531 

598; 
Pond  V.  Davenport,  45  Cal.  225 
Poole  V.  Gerrard,  6  Cal.  71 
V.  Mar-sli,  8  Sim.  528 
Poore  V.  Clarke,  2  Atk.  515 


483 
129 
727 
548, 
608 
417 
726 

424 

748 

780 
807 


114 

373 
182 
467 
591, 
594 
732 
291 
800 
801,  521, 
522 
352 


Marsh. 


259, 
365 


Pope  V.  Cole,  55  N.  Y.  124 
V.  Melcne,    2    A.    K 
289 
Port  V.  Pussell,  36  Ind.  60 
Porter  v.  Bleiler,  17  Barb.  149 
Postlewaite  c  Howes,  8  Iowa, 
Potter  V.  Earnest,  45  Ind.  416 

V.  Ellice,  48  N.  Y.  321 

Pott^ieser  v.  Dorn,  16  Minn.  204         661 

Powell  /•.  Finch,  5  Duer,  666        455,  456 

V.  Powell,  48  Cal.  284      856,  448, 

449 

V.  Boss,  4  Cal.  197  386,  394 

Powers   I'.    Humcratz,    12    Ohio    St. 

273 
Powis  V.  Smith,  5  B.  «&  A.  851 
Pratt  0.  Menkens,  18  Mo.  162 
Prettyman   ;-•.    Supervisors,    19    111. 

406  172 

Price  V.  Grand  Rapids,  &c.  R.  R.,  18 
Ind.  137  712 


800 
670 
260 
897 
627,  737 
335,  413 


246' 
226 
819 


Prindle   v.  Aldrich,    13    How.     Pr. 

466  615 

V.  Caruthers,  15  N.  Y.  425     591 

Pritchard  v.  Hicks,  1  Paige,  270      305, 

402 
Proctor  ('.  Baker,  15  Ind.  178  383,  892 
Prost  V.  More,  40  Cal.  847  675,  731 

Prouty  V.  Eaton,  41  Barb.  409      753,  759 
V.  Swift,  51  N.  Y.  594  609 

Pruyn  v.  Black,  21  N.  Y.  800  447 

Pugh  V.  Currie,  5  Ala.  446  305 

Pugsley  V.  Aiken,  11  N.  Y.  494  494 

Pullen  V.  Heron  Min.  Co.,  71  N.  C. 

567  890 

Purple  V.  Hudson  R.  R.  R.,  4  Duer, 

74  ,  183 

Putnam  v.  Ross,  55  Mo.  116  426 

V.  Wise,  1  Hill,  284  619 

Pyncent  v.  Pyncent,  8  Atk.  571  311 


Q- 

Quassaic  Bank  v.  Waddell,  3  N.  Y. 

S.  C.  680  370 

Quigley  v.  Merritt,  11  Iowa,  147  743 

Quin  V.  Lloyd,  41  N.  Y.  849        698,  708, 

724 
V.  Moore,  15  N.  Y.  482  180 

Quinney    v.   Stockbridge,   33  Wise. 

505  568 

Quintard  v.  Newton,  5  Robt.  72  606 


R. 


Racine    Bank    v.    Keep,    18   Wise. 
209  805, 

Racouillat  v.  Rene,  82  Cal.  450     659, 
Radde  v.  Ruckgaber,  3  Duer,  684 


806 
660 
670, 
709 
613 
266, 
270 

Rankin  r.  Major,  9  Iowa,  297      302,  385, 

391 

Raspillier    v.    Brownson,    7    Louis. 
231 

Rathbone  v.  Hooney,  58  N.  Y.  463 


Ragan  v.  Simpson,  27  Wise.  355 
Rainey  v.  Smizer,  28  Mo.  810     244, 


V.  McConnell,     20     Barb. 
811 
Rawlings  v.  Fuller,  81  Ind.  255 
Rawson  v.  Penn.  R.  R.,  2  Abb.  Pr. 

N.  s.  220 
Raymond  v.  Hanford,  0  N.  Y.  S.  C. 
312  588, 

V.  Pritchard,      24      Ind. 
318  715, 

V.  Richardson,    4    E.    D. 
Smith,  171 
Rayner  v.  Julian,  Dickens,  677 
Reab  v.  McAlister,  8  Wend.  109 
Read  v.  Sang,  21  Wise.  678        247, 


464 
392, 
893 

727 
210 

285 

585 


706 
401 
751 

287, 
334 


xlvi 


TABLE    OF    CASES    CITED 


Redman  v.  Malvin,  23  Iowa,  206 
Keed 


775, 

777 

Chuhb,  9  Iowa,  178  820 

V.  Harris,  7  KoLt.  151  105,  216 

V.  Howe,  28  Iowa,  250  528 

V.  Hobertson,  45  Mo.  580      89, 126 

V.  Strvker,  12  Abb.  Vv.  47  398 

Reed}'  v.  Smith,  42  Cal.  245  492 

Reeve  v.  Fraker,  32  Wise.  243     574,  591 

Reeves  v.  Kimball,  40  N.  Y.  299        187, 

190 

Reid  r.  Gifford,  Hopk.  416  317 

r.  The  Evergreens,  21  How.  Pr. 


319 
Reillcy  v.  Rucker,  16  Ind.  303 
Remington   v.    King,    11    Abb. 

278 
Reubens  i:  Joel,  13  X.  Y.  488 
Rengger   v.    Lindenberger,    53 

364 
Revalk  v.  Kraenier,  8  Cal.  66 


433,  435 
820 

Rr. 
819 
73,  74 

Mo. 

281 
373, 
395 
262 
646 
418 
276 


Revnolds  v.  Hosmer,  45  Cal.  616 

V.  Lounsburg,  6  Hill,  534 
Reynoldson  v.  Perkins,  Ami).  564 
Rhoads  v.  Bootli,  14  Iowa.  575 
Rhode  0.  Green,  26  Ind.  83  670,  710 

Ricard  v.  Sanderson,  41  N.  Y.  179     165, 

167 

Rice  I'.  O'Conner,  10  Abb.  Pr.  362      817 

V.  Saverv,  22  Iowa,  470       165,  166, 

169,  213,  272 

V.  Smith,  9  Iowa,  570  172 

Richard  v.  Kohl,  22  Wise.  506  817 

Richards  v.  Cooper,  5  Beav.  304  393 

V.  Darlv,  34  Iowa,  427  199 

Richardson  v.  Bates,  8  Ohio  St.  257     116 

V.  Hittle.  31  Ind.  119         715 

V.  Hulbert,  1  Anst.  65      403 

V.  Means,  22  Mo.  495    77,  78, 

103 

Richardson's  Adm'r  v.  Spencer,  18 

B.  Men.  450  300 

Richmond  v.   Dubuque,  &c.   R.  R., 

33  Iowa,  422  88,  106 

Richmond,  &c.  T.  Co.  v.  Rogers,  7 

Bus!),  632  77,  134,  136 

Richtmej'er  v.  Remsen,    38    N.    Y. 

206  179,  728 

Richtmyer  v.  Richtmyer,  50  Barb. 

55  246,  306,  494 

Ricketson    v.   Richardson,    19    Cal. 

831 
Riddick  v.  Walsh,  15  Mo.  538 


Kidenour  ?•.  Wlierritt,  30  Ind.  485 
Rigsbee  v.  Trees,  21  Ind.  227 
Rinehardt  i:  AVendeck,  40  Mo.  577 
Rinehart  v.  Rinehart,  2  McCarter, 

Rippstein  v.  St.  Louis,  &c.  Ins.  Co., 

57  Mo.  86 
Riser  v.  Snoddy,  7  Ind.  442 
Roback  v.  Powell,  36  Ind.  ol5 
Robbins  v.  Cheek,  32  Ind.  328 


820 
382, 
394 
406 
492 
422 
44, 
309 

741 
712 
649 
168 


Robbins  v.  Codnian.  4  E.  D.  Smith, 
325 
t'.  Deverill,  20  Wise.  142 

V.  Dishon,  19  Ind.  204 
V.  Lincoln,  12  Wise.  1 
V.  AVells,  18  Abb.  Pr.  191 
Roberts  v.  Carter,  38  N.  Y.  107 

200, 
V.  Evans,  43  Cal.  380 
V.  Johnson,  58  N.  Y.  613 

V.  Tnnstall,  4  Hare,  257 
Robertson  v.  Gr.  W.  R.  Co.,  10  Sim. 
314  311, 

V.  Rockford,  21  111.  451 
V.  Southgate,     6      Hare, 
536 
Robinson  v.  Allen,  37  Iowa,  27 
V.  Prost,  14  Barb.  536 

v.  Howes,  20  N.Y.  84    196, 
V.  Jennings.  7  Bush,  630 
17.  Rice,  20  Mo.  229 
V.  Wheeler.  25  N.  Y.  252 
V.  Willoughbv,   67   N.   C. 
84 
Robson  V.  Comstock,  8  Wise.  372 

591,  592, 
Rochester  v.  Alfred  Bank,  13  Wise. 

432 
Rocliester  City  Bank  v.  Suydain,  5 
How.  Pr.  216  92,  546. 

Rock  V.  Wallace,  14  Iowa,  693 
Rockwell  V.  Geery,  6  N.  Y.  Sup.  Ct. 

687 
Rodgers  v.  Rodgers,  11  Barb.  696 
Roe  V.  Rogers,  8  How.  Pr.  356 
Roehring  v.  Huebschniann,  34  Wise. 

185 
Rogers  v.  Gosnell,  58  Mo.  589 

V.  Milwaukee,  13  W^isc.  610 

V.  Penniston,  16  JIo.  432 

V.  Smith,  17  Ind.  323       289, 

Rohrer  v.  Turrill,  4  Minn.  407 
RoUeston  v.  Morton,  1  Dr.  &  W.  171 
Rollins*-.  Forbes.  10  Cal.  299 
Rolls  V.  Yate,  Yelv.  177 
Roosevelt  v.  Draper,  23  N.  Y.  318 
Root  V.  Taylor,  20  Johns.  137 
Roots  V.  Merriwether,  8  Bush,  897 
Roper  V.  McFadden.  48  Cal.  346 
Rose  V.  Hurley,  89  Ind.  77 
V.  Madden,  1  Ivans.  445 
V.  Page,  2  Sim.  471  804, 

V.  Treadwav,  4  Nev.  455 
V.  Williams!  5  Kans.  483      349, 
Rosekrans  v.  White,  7  Lans.  486 


Ross  V.  Cornell,  45  Cal.  133 
V.  Crary,  1  Paige,  416 
V.  Johnson,  1  Handy,  38 


630 
160, 
209 
168 
662 
220 
196, 
819 
019 
357, 
366 
407 

411 
172 

313 

735 
099, 

707 
,201 

516 
277 

616 

590, 
594 

172 

566 
172 

402 
515 
743 

495 
165 
647, 
670 
83, 
129 
485, 
532 
159 
892 
493 
227 
172 
204 
569 
728 
739 

392 
716 
856 
300, 
422 
129 
306 
819 


TABLE    OF   CASES    CITED. 


xlvii 


Ross  V.  Mather,  51  N.  Y.  108 


Rost  V.  Harris,  12  Abb.  Pr.  446 
Roth  V.  Palmer,  27  Barb.  652 
Rothe  V.  Kothe,  31  Wise.  570 
Rowe  V.  Beckett,  30  Ind.  154 
V.  Sniitli,  45  N.  Y.  230 
Rowland  i'.  Phalen,  1  Bosw.  43 
Rowlej^  V.  Woodruflf",  2  Lans.  419 
Roy  V.  Havilaiul,  12  Ind.  364 
Roys  V.  Vilas,  18  Wise.  169  163 

Ruekman  v.  Pitcher,  20  N.  Y.  9 


604,  608, 

609 
670,  709 
621,  628 

605,  609 
126 


368 
212 
803 
425 
265 
171, 
212 
815 
210 
647 
266 
129 
820 
129 
591 


Ruffing  V.  Tilton,  12  Ind.  259 
Runk  V.  St.  John,  29  Barb.  585 
Rush  V.  Corbett,  2  Johns.  Cas.  256 
Russell  V.  Allen,  13  N.  Y.  173 

V.  Byron,  2  Cal.  86  103, 

V.  Conway,  11  Cal.  93 

V.  Grimes,  46  Mo.  410 

V.  Mixer,  42  Cal.  475 

V.  State  Ins.  Co.,  55  Mo.  585 

598 

V.  Tomlinson,  2  Conn.  206      329 

Rutenberg  v.  Main,  47  Cal.  213  335, 

838,  839 
Rutherford   v.  Aiken,  3  N.  Y.  Sup. 

Ct.  60  151,  179 

V.  AVilliams,  42  Mo.   18 

89,98 
Rutledge  v.  Corbin,  10  Ohio  St.  478 

240,  269 
V.  Vanmeter,  8  Bush,  354    615 
Ryder  v.  Thomas,  32  Iowa,  56  827 

Ryerson   v.   Hendrie,  22   Iowa,  480 

276,  349,  856,  775 


Sabin  ;;.  Austin,  19  Wise.  421  627 

Sager  v.  Blain,  44  N.  Y.  445         604,  609 
V.  Nichols,  1  Daly,  1  334,  318 

Sainstry    v.    Grammar,    2   Eq.   Cas. 

Abr.  165  299 

St.  Anthony   Mill  Co.  v.  Vandall,  1 

Minn.  246  164,  216 

St.  John  V.  Griffith,  1  Abb.  Pr.  39       597 

V.  Griffith,  2  Abb.  Pr.  198      170 

V.  Hardwick,  11  Ind.  251       456 

Sale  V.  Crutchfield,  8  Bush,  636     106,  481 

Salinger  r.  Lusk,  7  How.  Pr.  430        662 

Saltus  V.  Kip,  5  Duer,  646  721 

Salvidge  v.  Hyde,  5  Madd.  138  518 

Sample  v.  Griffith,  5  Iowa,  376  820 

V.  Rowe,  24  Ind.  208  785 

Sampson  v.  Shaeffer,  3  Cal.  196  134 

Samuels  v.  Blanchard,  25  Wise.  329     260, 

272,  612,  613 

Sanders  v.  Clason,  13  Minn.  379  165, 

166,  515 

V.  Sanders,  39  Ired.  207  653 

Sands  v.  St.  John,  36  Barb.  628     629,  735 

V.  Wood,  1  Iowa,  263         386,  390 

Sanford  v.  Travers,  40  N.  Y.  140  813 


Sargent  v.  Ohio  &  M.  R.  R.,  1  Handy, 
52 
V.  W^ilson,  5  Cal.  504      373, 

Sauer  v.  Steinbauer,  14  Wise.  70 
Sauerhering  v.  Iron  Bridge,  &c.  R.R., 

25  Wise.  447 
Saulsbury  v.  Alexander,  60  Mo.  142 
591,  592,  594, 
Saumarez  v.  Saumarez,  4  M.  &  C. 

886 
Saunders  v.  Druce,  3  Drew.  140 
Savage   v.  Corn   Exch.  Ins.   Co.,  4 
Bosw.  2  159, 

V.  O'Neil,  44  N.  Y.  298 
Saville  v.  Tancred,  1  Ves.  Sen.  101 
Sawyer  v.   Chambers,   11  Abb.  Pr. 
110 
V.  Warner,  15  Barb.  282 
Sayor  v.  Claj'ton,  1  Lutw.  695 
Sayres  v.  Linkhart,  25  Ind.  145   653, 
Scantlin  v.  Allison,  12  Kans.  85 
Schadt  ('.  Heppe,  45  Cal.  433 
Schaetzel  v.   Germantown,  &c. 

Co.,  22  Wise.  412 
Schafer  v.  Keilly,  50  N.  Y.  61 
Schaus  V.   Manhattan    Gas   Co 

Abb.  Pr.  N.  S.  871 
Scheer  v.  Keown,  34  Wise.  349 


Ins. 

188, 
.,  14 
699, 


172 
395, 
467 
498 

172 

595 

313 

298 

788 
870 
309 

455 

659 
325 
820 
213 
886 

662 
190 


706 

699, 
709,  727 
655 
458 
495 


Schehan  v.  Malone,  71  N.  C.  440 
Sclieidt  V.  Sturgis,  10  Bosw.  606 
Schenck  v.  Butsch,  82  Ind.  338 

V.  EUingwood,  3  Edw.  Ch. 

775  808 

Schermerhorn  v.  Barhydt,  9  Paige, 

28  402 

V.    Van     Allen,    18 

Barb.  29     698,  706 
Scheunert    v.     Kaehler,    28     Wise. 

523  613,  798 

SchiefFelin  v.  Hawkins,  1  Daly,  289     819 
Schmidt  v.  Coulter,  3  Minn.  492  818 

Schnaderbec^k  v.  Worth,  8  Abb.  Pr. 

87  791,  811 

Schneider  v.  Schultz,  4  Sandf.  664  743 
Schnier  v.  Fay,  12  Kans.  184  151,  183 
Scholefield  v.  Healield,  7  Sim.  667  424 
School  District  v.  Pratt,  17  Iowa,  16  334 
Sclioonover  v.  Quick,  17  Ind.  196  820 
Schubart  v.  Harteau,  84  Barb.  447  762, 
777,  779,  817 
Schular  v.  Hudson  R.  R.  R.,  38  Barb. 

653  698,  706 

Schultz  V.  Winter,  7  Nev.  130      317,  -516 
Seofield  v.  Eighth   Sciiool  Dist.,  27 

Conn. 499  172 

V.    Whitclegge,   49    N.    Y. 

259         590,  595,  596,  630 
Scott  V.  Conway,  58  X.  Y.  619  351 

V.  Crawford,  12  Ind.  411  83 

V.  Gill,  19  Iowa,  187  165 

V.  Godwin,  1  B.  &  P.  67       225,  226 
V.  Guernsey,  60  Barb.  163    3U0,  422 
Scribner  v.  Allen,  12  Minn.  148  172 


xlviii 


TABLE    OF    CASES    CITED. 


Sea-icr  v.  Burns,  4  Minn.  141       839,  412 
Seaiiiiin  v.  Gooiliiow,  2U  Wise.  27        527 
V.  Jolmson,  46  Mo.  Ill  129 

r.  IJeeve,  loBiirb.  454  818 

Seaton  r.  Davis,  1  N.  Y.  8.  C.  91  221 
Sebring  v.  ;\iessercau,  llopk.  501  421) 
Secor  V.  Kt'licr,  4  Diier,  416  2tJ9 

*'.  Lord,  3  Ke.ves,  525  165,  167 

See  V.  Partridjie,  2  i)iier,  463  510 

Seeley  v.  En-ieli,  13  N.  Y.  542  117,  645 
Selhy  V.  PoMifret,  1  J.  &  H.  336  303 

Selden  v.  Prinule,  17  IJarb.  458  161 

Seliar  c.  Sn-e,  12  How.  I'r.  531  597 

Sellon  V.  Biadeu,  13  Iowa,  365  353,  356 
Sells  t'.  Hubbfll,  2  Johns.  Ch.  394  404 
Senii)le  i-.  Lee,  13  Iowa,  304       385,  386, 

388 
Servante  v.  James,  10  B.  &  C.  410      225, 

226 
Settembre  v.  Putnam,  30  Cal.  490,     411, 

423,  456 

Sexton  V.  Ehames,  13  Wise.  99  629 

Seymour  v.  Davis,  2  Sandf.  239  751 

Sliafer  v.  Bronenberg,  42  Ind.  89         715 

V.  Moriartv,  46  Ind.  9  349 

Shalter  v.  Caldwell,  27  Ind.  376  129 

Shane  v.  Lowrv,  48  Ind.  205         334,  365 

Shank  v.  Teeple,  33  Iowa,  189  589 

Shannon  v.  Pearson,  10  Iowa,  588        743 

V.  Wilson,  19  Ind.  112    816,  820 

Sharpe  v.  Clifibrd,  44  Ind.  346  372 

Shartle  '•■  Minneapolis,  17  Minn.  30S  630 

Shattockf.  Shattock,  L.  R.  2  Eq.  182  372 

Shaver  v.  Brainard,  29  Barb.  25  335,  397 

V.   West.    Un.   Tel.    Co.,   57 

N.  Y.  459  153 

Shaw  V.  Hoadley,  8  Blackf.  165  382 

V.  Sherwood,  Cro.  Eliz.  729       227 
Shearer  v.  Mills,  35  Iowa,  499  736 

Sheehan  v.  Hamilton,  2  Keyes,  304  104 
Shelby   Co.    v.  Simmonds,  33  Iowa, 

345  214 

Sheldon  v.  Steamship  "  Uncle  Sam," 

18  Cal.  526  290 

Shelly  V.  Vaiiarsdoll,  23  Ind.  543  811 
Shepherd  v.  Evans,  9  Ind.  260  221 

Sheppard  /;.  Starke,  3  Munf.  29  305 

Sherman  v.  Elder,  24  N.  Y.  381  179 

V.  I'arish,  53  N.  Y.  483  404 

458 
Sherril  v.  Birch,  3  Bro.  C.  C.  229  306 
Sherwood   v.    Vandenburgh,  2  Hill, 

303  344 

Shields  V.  Fuller,  4  Wise.  102  129 

V.  Perry,  16  Louis.  463  464 

Shipton  V.  Hawlins.  4  Hare,  619  404 

Siiirley  v.  Jacobs,  7  C.  &  P.  3  690 

Shockley  v.  Shockley,  20  Ind.  108      283, 

302 
Shore  i-.  Smith,  15  Ohio  St.  173  527 

V.  Tavlor,  46  Ind.  345  374,  628 

Shorter  v.  Nelson,  4  Lans.  114  369 

Shropshire  i'.  Conrad,  2  Mete.  143       820 
Shuler  V.  MilUop's  Ex'or,  71  N.  C. 
297  290 


Sickels  V.  Pattison,  14  Wend.  257 
Silliman  v.  Tuttle,  45  Barb.  171 


750, 

751 

170, 

265 

Silsbee  v.  Smith,  60  Barb.  372      403,  425 

Silver  t-.  Foster,  9  Kans.  56  349 

Silvers   v.  Junction  R.  R.,  43  Ired. 

435  627.  628,  652 

Simar  v.  Canaday,  53  N.  Y.  298  253, 

255,  287,  288,  511,  778 
Simmons   v.  Eldridge,  29   How.  Pr. 

309  598 

1-.  Law,  8  Bosw.  213  630 

V.  Sisson,  26  N.  Y.  264       647, 

675 

Simpson  v.  McArthur,  16  Abb.  Pr. 

302  (n.)  670,709 

Sims  V.  Bond,  5  B.  &  Ad.  389  170,  215 
Singleton  v.  Scott,  11  Iowa,  589  548,  571 
Sipperly  v.  Troy,  &c.  11.  R.,  9  How. 

Pr.  83  517,  527 

Siter  V.  Jewett,  33  Cal.  92  660,  743 

Sizer  v.  Miller,  9  Paige,  605  399 

Skinner  v.  Clute,  9  Nev.  342  628,  674 
Slater  v.  Magraw,  12  Gill  &  J.  265  325 
Slattery  v.  Hall,  43  Cal.  191  591 

Slayback  v.  Jones,  9  Ind.  470  752, 

767,  773,  780,  805,  808 
Slingsby's  Case,  5  Rep.  18  h,  224,  225 
Sloan  V.  McDowell,  71  N.  C.  356        777, 

778 
V.  N.  Y.  Cent.  R.  R.,  4  N.  Y. 

S.  C.  135  285 

Slocum  V.  Barry,  34  How.  Pr.  320  216 
Sloman  v.  Schmidt,  8  Abb.  Pr.  5  583 
Slone  V.  Slone,  2  Mete.  339  812 

Small  V.  Attwood,  1  Y'ounge,  407        297, 

522 

;'.  Sloan,  1  Bosw.  352  182 

Smart  v.  Bradstock,  7  Beav.  500  310 

Smead  v.  Chrisfield,  1  Disney,  18  806,819 

Smetters  v.  Rainey,  14  Ohio  St.  287    333 

Smith  V.  Allen,  1  Lans.  101  369 

V.  Bolden,  33  Beav.  262  309 

V.  Chicago  &  N.  W.  R.  R.,  23 

Wise.  267  163 

V.  Countryman,  30  N.  Y.  655  598 
V.  Dennett,  15  Minn.  81  591,  594 
V.  Douglas,  15  Abb.  Pr.  266  628 
V.  Felton,  43  N.  Y.  419  197 

V.  Fife,  2  Neb.  10  808 

V.  Fox,  48  N.  Y.  074  197 

V.  Harris,  43  Mo.  557  185 

V.  Holmes,  19  N.  Y.  271  734 

V.  Howe,  31  Ind.  233  372 

V.  Kennitt,  18  Mo.  154  161,  1^79 
V.  Lisher,  23  Ind.  500  722 

V.  Moberly,  15  B.  Mon.  70        106, 
118 
V.  Orser,  43  Barb.  187         484,  509 
V.  Rowe,  4  Cal.  6  77 

V.  St.  Jose])h,  55  Mo.  456  289 

V.  Schibel,  19  Mo.  140  151 

V.  Smith,  33  Mo.  557  129 

V.  Snow,  3  Mad.  10    306,  307,  422 


TABLE    OF    CASES    CITED. 


xlix 


Smith  r.  Steinkamper,  16  Mo.  150 
V.  Watson,  2  15.  &  C.  401 
V.  Weaye,  21  Wise.  440 
V.  Wells,  20  How.  Pr.  158 
V.  West's  Ex'or,  5  Litt.  48 
V.  Whitney,  22  Wise.  438 
Smither  v.  Calvert,  44  Ind.  242 
Smithies  v.  Harrison,  1  Ld.  Raym. 

727 
Snow  V.  Howard,  35  Barb.  55 
Snowden  v.  Wilas,  19  Ind.  10      591, 

Snyder  v.  Webb,  3  Cal.  83 
Sohier  v.  Williams,  1  Curtis,  479 
Sorsbie  v.  Park,  12  M.  &  W.  146 
Sortore  v.  Scott,  6  Lans.  271       316, 

Sourse  v.  Marshall,  23  Ind.  194 
Spalding  v.  Ale.xander,  6  Bush,  160 
Sparks  v.  Heritage,  45  Ind.  66      670 
Spears  v.  Ward,  48  Ind.  541 
Speer  v.  Bishop,  24  Ohio  St.  598 

V.  Crawter,  2  Meriv.  410 
Spence  v.  Hogg,  1  Coll.  225         312 

V.  Spence,  17  Wise.  448 
Spencer  v.  Babcock,  22  Barb.  326 
V.  Sheehan,  19  Minn.  338 
Speyer  v.  Ihmels,  21  Cal.  280 
Speyers  v.  Fisk,  6  N.  Y.  S.  C.  197 

Spicer  v.  Hunter,  14  Abb.  Pr.  4 

Spragg  V.  Binkes,  5  Ves.  587 
Springer  v.  Cabell,  10  Mo.  640 

V.  Clay  Co.,  35  Iowa,  241 
V.  Dwyer,  50  N.  Y.  19 

V.  Vanderpool,  4  Edw.  Ch. 
362 
Springsteed  v.  Lawson,  14  Abb.  Pr. 

328 
Squires    v.    Seward,    16   How.   Pr. 

478 
Stadler  v.  Parmelee,  10  Iowa,  28 
Stafford  v.  City    of   London,    1    P. 

Wms.  428 
Stalcup  V.  Garner,  26  Mo.  72 
Stanberry  v.  Smytlie,  13   Ohio  St. 

495 
Standish  v.  Dow,  21  Iowa,  363     384, 
Stanford  v.  Stanford,  42  Ind.  485 
Stansfield  v.  Hobson,  16  Beav.  189 
Stanton  v.  Leiand,  4  E.  D.  Smith, 

88 
Starbuck  v.  Dunklee,  10  Minn.  173 
State  V.  Bailey,  7  Iowa,  390 

V.  Cent.  Pac.  R.  R.,  9  Nev.  79 

V.  Chamberlin,  54  Mo.  338 

V.  Co.  Judge,  7  Iowa,  186 

V.  Dubuclet,  ib.  365 

V.  Graham,  23  La.  An.  402 

r.  Kruttschnitt,  4  Nev.  178 

V.  Meagher,  44  Mo.  356 

V.  Moore,  19  Mo.  369 

V.  Orwig,  34  Iowa,  112        344, 


819 
777 
457 
742 
302 
616 
372 

689 
355 
645, 
734 
284 
311 
225 
404, 
492 
440 
785 
708 
627 
602 
300 
412 
645 
773 
282 
467 
353, 
356 
398, 
399 
310 
129 
736 
742, 
771 

404 

529 

727 
820 

299 
516 

819 
893 
364 
301 

180 
655 
172 
716 
712 
172 
465 
465 
515 
120 
214 
345 


State  V.  Williams,  48  Mo.  210 
Steadman  v.  Guthrie,  4  Mete.  147 
Stearns  v.  Martin,  4  Cal.  227 
Stebbins   v.    Goldthwaite,    31    Ind. 

159 
Steele  v.  Etheridge,  15  Minn.  501 
Steliman  v.  CruU,  26  Ind.  436      126, 
Steinhart  v.  Pitcher,  20  Minn.  102 
Stepank  v.  Kula,  36  Iowa,  563      275, 
Stephens  v.  Magar,  25  Wise.  533 
Sternberger  v.  McGovern,  56  N.  Y. 

12  100,  101, 

Stevens  v.  Brooks,  22  Wise.  695 

438, 
V.  Brooks,  23  Wise.  196 
V.  Campbell,  21  Ind.  471 

V.  Parish,  29  Ind.  260 
V.  Thompson,  5  Kans.  305 
Stewart  v.  Erie,  &c.  Co.,  17  Minn. 
372  434, 

V.  Hoag,  12  Oliio  St.  628 


Stich  V.  Dickenson,  38  Cal.  608    461, 
Still  V.  Hall,  20  Wend.  51 
Stilwell  V.  Chappell,  30  Ind.  72 

V.  Hurlbert,  18  N.  Y.  374 
V.  McNeely,  1  Green,    Ch. 
305 
Stillwell  V.  Kellogg,  14  Wise.  461 
Stockett  V.  Walkins's  Adm'r,  2  Gill  & 

J.  326 
Stoddard  v.  Treadwell,  26  Cal.  294 

Stoddert  v.  Ward,  31  Md.  662 
Stokes  V.  Geddes,  46  Cal.  17 

V.  Scott  Co.,  10  Iowa,  166 
Stone  V.  Buckner,  12  Smedes  &  M. 
73 
V.  Fouse,  3  Cal.  292  103, 

V.  Lewman,  28  Ind.  97 
Stone's  Adm'r  v.  Powell,  13  B.  Mon. 

342 
Storm  V.  Davenport,  1  Sandf.  Ch.  135 
Stout  V.  Noteman,  30  Iowa,  414 

V.   St.  Louis,  &c.  Co.,  52  Mo. 

342  583, 

Stowell's  Adm'r  v.  Drake,  8  Zabr. 

310 
Streatfield  v.  Halliday,  3  T.  R.  782 
Street  v.  Beal,  16  Iowa,  68  385, 

895 
V.  Bryan,  65  N.  C.  619 
Strickland    v.    Strickland,    12 

463 
Striker  v.  Mott,  2  Paige,  887 
Stringfellow  v.  Alderson,  12  Kans 

112 
Stringfield  v.  Graff,  22  Iowa,  438 
Stroebe  v.  Fehl,  22  Wise.  347 
Stronach  i'.  Stronach,  20  Wise. 
Strong  V.  Clem,  12  Ind.  37 

V.  Downing,  34  Ind.  300 
Struman  v.  Robb.  37  Iowa,  311 
Stucker  v.  Stueker,  3  J.  J.  Marsh.  301 


Sim. 


129 
161, 
834 


732 

272 
780 

711 

759 
127 
807 
287 
493 

494 
436, 
440 
613 

388, 
388 
372 

725 

435 
709, 
728 
463 
751 
820 
215 

308 
493 

619 
804, 
806 
172 
569 
172 

412 

129 
653 

728 
404 

357 

585 

227 
326 
392, 
429 
807 

402 
300 

645 

308 
612 
298 
182 
365 
118 
301 


TABLE   OF    CASES    CITED. 


vSturccs  V.  Burton,  8  Ohio  St.  215       627 
Stiirman  v.  Stone,  31  Iowa,  115  670 

Sturtevant  v.  Brewer,    9  Abb.  Pr. 

414  455 

Suitor  V.  Turner,  10  Iowa,  517     385,  391 

Sullivan  i'.  Davis,  4  Cal.  291  525 

Summers  v.  Farish,  10  Cal.  347  170 

V.  Hoover,  42  Ind.  153  710 

V.  Hutson,  48  Ind.  228  460 

V.  Vaughan.  35  Ind.  323      653 

Sumner  v.  Coleman,  20  Ind.  486    383,  386 

Supervisors  v.  Decker,  30  Wise.  624     96, 

98,  102,  605,  609,  610 

17.   Decker,    34    Wise. 

378  615,  616 

V.     Hubbard,    45     111. 

139  172 

i;.  Kirby,  25Wisc.  498     574 

Sussdorf  V.  Schmidt,  55  N.  Y.  319      585, 

601 

Sutton  r.  Stone,  2  Atk.  101  418 

Suvdam  v.  Moore,  8  Barb.  3-58  361 

Swain  v.  Duane,  48  Cal.  358  284 

Swasey  v.  Antram,  24  Ohio  St.  87       371 

Sweet  V.  Ingerson,  12  How.  Pr.  331     499, 

501,  512,  529 

V.  Mitchell,  15  Wise.  641  613 

V.  Tuttle,  14  N.  Y.  465      723,  741 

Sweezey  v.  Collins,  36  Iowa,  589         601 

Swift  V.  Ellsworth,  10  Ind.  205  158, 

168,218,  733 

V.  Fletcher,  6  Minn.  550  773 

V.  Kingsley,  24  Barb.  541  630 

V.  Swift,  46  Cal.  266  215 


Tablier  v.  Wiseman,  2  Ohio  St.  207  422 
Tabue  v.  McAdams,  8  Bush,  74  346,  355 
Taggart  i'.  Bisley,  3  Oreg.  306  650 

Taintor  v.  Prendergast,  3  Hill,  72  170 
Tait  I'.  Culbertson,  57  Barb.  479  367 

Talbert  v.  Singleton,  42  Cal.  390  116 

Tallman  v.  Hollister,  9  How.  Pr.  508  459 
Tanner  v.  Niles,  1  Barb.  560  420 

Tarbox  v.  Supervisors,  34  Wise.  558  735 
Tarwater  v.  Han.  &  St.  Jo.  11.  R., 

42  Mo.  193  811 

Taskerr.  Small,  3  My.  &  Cr.  63      311, 

312,  411 
Tassell  v.  Smith,  2  DeG.  &  J.  713  303 
Tate  V.  Ohio,  &c.  R.  R.,  10  Ind.  174     168, 

243  317 

Taylor  v.  Adair,  22  Iowa,  279      460^  463 

V.  Boedicker,  22  La.  An.  79     465 

t;.  Root,  4  Keyes,  335  776 

V.  Stowell,  4  Mete.  175  820 

V.  Thompson,  42  111.  9  172 

Teal  j;.  Woodworth,  3  Paige,  470        420 

Tell  V.  Beyer,  38  N.  Y.  161  630,  726 

Tendescn  v.  Marsliall,  3  Cal.  440         526 

Ten  Eyck  v.  Casad,  15  Iowa,  524      384, 

392 
V.  Mayor,  15  Iowa,  486        172 


Tennant  v.  Pfister,  45  Cal.  270  247 

Tenney    v.    State  Bank,   20    Wise. 

152  102,  612 

Terhune  v.  Terhune,  40  How.  Pr. 

258  787 

Terrell  v.  Walker,  66  N.  C.  244  751 

Terret  v.  Sharon,  34  Conn.  105  172 

Terry  v.  Hammonds,  47  Cal.  32  370 

Terwilliger    v.  Wheeler,    35   Barb. 

620  169 

Texier  v.  Gouin,  5  Duer,  389       699,  724 
Thatcher  v.   Candee,  33  How.  Pr. 

145  299,  308 

V.  Cannon.  6  Bush.  541  820 
V.  Hann,  12  Iowa,  303  427 
V.  Heisey,   21    Ohio    St. 

668  604 

Thomas  v.  Bennett,  56  Barb.  197        221 
V.  Dunning,  5  DeG.  &  Sm. 

618  301 

V.  Kennedy,  24  Iowa,  397       417 
V.  Rumsey,  6  Jolins.  32  328 

Thompson  v.  Baskerville,  3  Ch.  Rep. 

215  308 

V.  Erie  R.   R.,  45  N.  Y. 

468  713 

V.  Graham,  1  Paige,  384  310 
V.  Greenwood,     28     Ind. 

327  723,  741 

V.  Kessel,  30  N.  Y.  383  796, 
812,  814 
V.  Mylne,  4  La.  An.  206  465 
V.  Sickles,  46  Barb.  49  773 
V.  Sweetser,  43  Ind.  312  708 
V.  Toland,  48  Cal.  99  216 

Thornton  t-.  Crowther,  24  Mo.  164       161 
V.   Knox's     Ex'or,    6    B. 

Mon   74  302 

V.  Pigg,  24  Mo.  249      382,  394 
Thorp  V.  Keokuk  Coal  Co.,  48  N.  Y. 

253  167 

Thurman  v.  Welles,  18  Barb.  500        184 
Tibbetts  v.  Blood,  21  Barb.  650  219 

Tifft  V.  Buffalo,  1  N.  Y.    Sup.   Ct. 

150  172 

Tinkum  v.  O'Neale,  5  Nev.  93  333,  349 
Tinsley  v.  Tinsley,  15  B.  Mon.  454  780, 
795,  805,  808 
Todd  t;.  Sterrett,  6  J.  J.  Marsh.  432  310 
Tomlinson  v.  Monroe,  41  Cal.  94  595 
Tompkins  v.  Wadley,  3  N.  Y.  S.  C. 

424  721,  730 

V.  White,  8  How.  Pr.  520     525 
Tonnelle  v.  Hall,  3  Abb.  Pr.  205  363 

Toombs  V.  Hornbuckle,  1  Mont.  286     663 
Touciiard  v.  Keyes,  21  Cal.  202  262 

Towell  V.  Pence,  47  Ind.  304  652 

Towers  v.  Moore,  2  Vern.  99  328 

Towie  V.  Pierce,  12  .Mete.  329  305 

Town  of  Duanesburgh  v.  Jenkins,  46 

Barb.  294  217 

Town  of  Venice  v.  Breed,  65  Barb. 

.597  425,718,743,781,813 

Towner  v.  Tooley,  38  Barb.  598      363. 

432,  435 


TABLE    OF   CASES   CITED. 


li 


Townsend  v.  Bissell,  6  N.  Y.  S.  C. 

583  277 

V.  Chanipernowne,  9  Price, 

130  414 

Tracy  v.  Ames,  4  Lans.  500  603 

Tradesman's  Bank  v.  McFeely,    61 

Barb.  5-22  517,  531 

Traster  v.  Snelson's  Adm'r,  29  Ind. 

96  653 

Travis  i;.  Barjrer,  24  Barb.  614  721 

Tread  way  v.  Wilder,  8  Nev.  91  595 

Trecothick  v.  Austin,  4  Mason,  41       411 
Trescott  v.  Smyth,  1   McCord  Ch. 

801  428 

Trogden  v.  Deckard,  45  Ind.  572     670, 

709 
Troy  &  B.  R.  R.  v.  Tibbits,  11  How. 

Pr.  168  615 

Troy  &  Rut.  R.  R.  v.  Kerr,  17  Barb. 

581  629,  630 

Truesdale  v.  Rhodes,  26  Wise.  215  334, 
338,  339,  484 
Tripp  V.  Riley,  15  Barb.  333  262,  266 
Troost  V.  Davis,  31  Ind.  34  83,  84,  86 
Trowbridge  v.  Forepaugh,  14  Minn. 

133  358,  360,  515 

Truitt  V.  Baird,  12  Kans.  420  737 

Trull  V.  Granger,  8  N.  Y.  115  620 

Trustees,  &c.  v.  Forrest,  15  B.  Mon. 

168  105 

V.  Kellogg,  16  N.  Y.  83 

400 
Trustees  v.  Odlin,  8  Ohio  St.  293        547, 

591 
Try  on  v.  Baker,  7  Lans.  511  619,  620 
Tucker  v.  Shiner,  24  Iowa,  334  357, 

448 

V.  Silver,  9  Iowa,  261  403 

Turk  V.  Ridge,  41  N.  Y.  201  167 

Turner  v.  Duchman,  17  Wise.  500     528, 

533 
V.  First  Nat.  Bank,  26  Iowa, 

562  334,  528 

V.  Hitchcock,  20  Iowa,  310     358, 

362,  367 

V.  Pierce,  84  Wise.  658     96,  102, 

493 

V.  Simpson,  12  Ind.  413  820 

Tutorship  of  Hackett,  4  Rob.  290         465 

Tyler  v.  Freeman,  3  Cush.  261  171 

V.  Willis,  33  Barb.  327  773 

Tyson  v.  McGuineas,  25  Wise.  656     178, 

179 


u. 

Umsted  v.  Buskirk,  17  Ohio  St.  113    247, 

320,  409 
Union  Bank  v.  Bell,  14  Ohio  St.  200    333, 

382,  390 
V.  Bowman,  15  La.  An. 

271  465 

V.  Mott,  27  N.  Y.  683      858. 

621 


Union  India  Rubber  Co.  v.  Tomlin- 

son,  1  E.  D.  Smith,  364  216 

Upington  v.  Oviatt,  24  Ohio  St.  232    317, 

319 
Urton  V.  State,  37  Ind.  339  670 

Usparicha  v.  Noble,  13  East,  232  171 

Utley  V.  Foy,  70  N.  C.  303  151,  780 


V. 


Vail  V.  Jones,  31  Ind.  467     742,  785,  809, 

813 
Van  Alstyne  v.  Van  Slyck,  10  Barb. 

383  325 

Van  Arsdale  v.  Drake,  2  Barb.  599  420 
Van  Cleave  v.  Beam,  2  Dana,  155  312 
Vanderpoel  v.  Van  Valkenburgh,  6 

N.  Y.  190  312,  397,  399 

Van  de  Sande  v.  Hall,  13  How.  Pr. 

458  773 

Van  Deusen  v.  Young,  29  Barb.  9       260 

Vandevoort  v.  Gould,  o6  N.  Y.  639      525 

Van  Doren  v.  Relfe,  20  Mo.  455     151, 164 

V.    Robinson,      1    C.    E. 

Green,  256  308,  406 

Vanduyn  v.  Hepner,  45  Ind.  589  709 

Van   Dyke   v.   Maguire,  57    N.    Y. 

429  659,  706 

Van  Epps  v.  Harrison,  5  Hill,  63  751 

Van  Giesen  v.  Van  Giesen,  12  Barb. 

520  689,  698 

Van  Home  v.  Everson,  13  Barb.  526  245 
Van  Lien  v.  Byrnes,  1  Hilt.  133  215 

Van  Liew  v.  Johnson,  6  N.  Y.  S.  C. 

648  517 

Van  Maren  v.  Johnson,  15  Cal.  308  283 
Van  Metre  v.  Wolf,  27  Iowa,  341  733 
Vanneman  v.  Powers,  56  N.  Y.  39  368 
Van  Nest  v.  Latson,  19  Barb.  604     382, 

387 
Vanover  w.  Justices,  27  Ga.  354  172 

Van  Schaick  v.  Farrow,  25  Ind.  310    548, 

571 
V.  Third  Av.  R.  R.,  38 
N.  Y.  346  165,  167 

Van  Steinburgh  v.  Tobias,  17  Wend. 

562  329 

Van  Valen  v.  Lapham,  5  Duer,  689    817 
V.  Russell,  13  Barb.  590     777 
Van  Wart  v.  Price;  14  Abb.   Pr.  4 

(n.)  262 

Varick  v.  Smith,  5  Paige,  160  401 

Vassear  v.  Livingston,  13  N.  Y.  256     630, 

762,  772 
Vaughn  v.  Gushing,  23  Ind.  184  427 

Veach  v.  Schaup,  3  Iowa,  194  386,  392 
Veeder  v.  Lima,  19  Wise.  280  172 

Vermeule  v.  Beck,  15  How.  Pr.  333  513 
VialL  V.  Mott,  37  Barb.  208  512 

Viburt  V.  Frost,  3  Abb.  Pr.  120  248 

Vieley  v.  Thompson,  44  111.  9  172 

Vilas  V.  Mason,  25  Wise.  310    612,  793, 

814 
Vint  V.  Padget,  2  DeG.  &  J.  611  303 


lii 


TABLE   OF   CASES   CITED. 


Virden  v.  Ellsworth,  15  Inrl.  144     857, 

Virgin  r.  Rrubaker,  4  Nev.  31 

Von  Schmidt  v.  Huntington,  1  Cal. 

55 
Voorhis  v.   Baxter,  18  Barb,   592; 

1  Abb.  Pr.  43  246, 

Voorhis  v.  Child's  Ex'ors,  17  N.  Y. 

354  73,  74,  148,  245,  852, 

Voris  V.  State,  47  Ind.  345 
Vose  V.  Galpin,  18  Abb.  Pr.  96 
V.  Philbrook,  3  Story,  335 


w. 

Wade  V.  Kalbfleisch,  58  N.  Y.  282 
V.  Rusher,  4  Bosw.  537 
V.  State,  37  Ind.  180 

Waddell  v.  Darling,  51  N.  Y.  327 

Wadley  v.  Davis,  63  Barb.  500 

80 
Waggoner  v.  Liston,  37  Ind.  357 
Wagner  v.  Evving,  44  Ind.  441 
Wakeman  v.  Grover,  4  Paige,  23 

Waldron  v.  Willard,  17  N.  Y.  466 
Walker  v.  Kvnett,  32  Iowa,  524 

V.  McKay,  2  Mete.  294    196, 
V.  Mauro,  18  Mo.  564 
V.  Mitchell,  18  B.  Mon.  541 
V.  Paul,      Stanton's      Code, 

37 
V.  Sedgwick,  8  Cal.  398     96, 

V.  Simon,  21  La.  An.  669 
V.  Symonds,  3  Swanst.  75 
V.  Wilson,  13  Wise.  522 
Walker's  Adm'r  v.  Walker,  25  Mo. 
367  89,  98, 

Walkup  V.  Zehring,  13  Iowa,  306 
Wall  V.  Buffalo  Water  Co.,  18  N.  Y. 
119 
V.  Whisler,  14  Ind.  228 
Wallace  ;?.  Eaton,  5  How.  Pr.  99 
V.  Morss,  5  Hill,  391 
V.  Bobb,  37  Iowa,  192 
Wallenstein   v.    Selizman,   7   Bush, 

175 
Walley  v.  Waller,  1  Vern.  487 
Walrod  v.  Bennett,  6  Barb.  144 
Walsh  I'.  Hall,  66  N.  C.  233        811, 

V.  Wash.  &c.  Ins.  Co.,  3  Robt. 
202 
Walsworth  v.  Johnson,  41  Cal.  61 
Walter  v.  Bennett,  16  N.  Y.  250 

608,  609, 
Wandle  v.  Turney,  5  Duer.  661 
Wapello  County  v.  Bigham,  10  Iowa, 

39 
Ward  V.  Guyer,  3  N.  Y.  S.  C.  58 
Warden   r.    Supervisors,   14   Wise. 

618 
Waring  ;;.  Waring,  3  Abb.  Pr.  246 


448 
164 

435 

352 

353 
353 
814 
305, 
308 


179 
423 

733 
765, 
819 
795, 
814 
668 
733 
392, 
404 
180 
127 
199 
152 
525 

307 
,97, 
493 
465 
407 
821 

132 
492 

664 
456 
397 
621 


777 
305 
727 
812, 
814 

213 
734 
604, 
612 
510 

352 
628 

172 
459 


Warner  v.  My  rick,  16  Minn.  91 

V.  Steamship  "  Uncle  Sam,' 

9  Cal.  697 
V.  Turner,  18  B.  Mon.  758 
V.  Warren,  46  N.  Y.  228 

Warren  v.  Van  Pelt,  4  E.  D.  Smith, 

202 
Warth  V.  Radde,  18  Abb.  Pr.  396 

Washington  Town'p  v.  Bonney,  44 

Ind.  77 
Waterbury  v.  Westervelt,  9  N.  Y. 

598 
Waterman  v.  Frank,  21  Mo.  108 
Waterville   Man.   Co.  v.  Bryan,  14 

Barb.  182 
Watkins  v.  Jones,  28  Ind.  12 
Watson  V.  Gabby,  18  B.  Mon.  658 

V.  Hazzard,    3    Code    Eep. 

218 
V.  Rushmore,    15  Abb.   Pr. 

51 
V.  San  Francisco,  &c.  R.  R., 
41  Cal.  17 
Watt  r.  Alvord,  25  Ind.  533         383, 
V.  Mayor,  1  Sandf.  23  196, 

AVatts  V.  McAllister,  33  Ind.  264 

V.  Symes,  1  DeG.  M.  &  G.  240 
Waugenheim    v.    Graham,   39    Cal. 
169  805, 

Waugh  V.  Blumenthal,  28  Mo.  462 
Way  V.  Bragaw,  1  C.  E.  Green,  213 
Wayland  v.  Tysen,  45  N.  Y.  281 
Weaver  v.  Barden,  49  N.  Y.  286 

707, 

V.  Trustees,    &c.,    28    Ind. 

112  209, 

Webb  V.  Bidwell,  15  Minn.  479     569, 

V.  Helion,  3  Robt.  625 
Weber  v.  Marsliall,  19  Cal.  447 


Webster  v. 


Drinkwater,   5  Greenl. 


V.    Harwinton,    32     Conn. 

131 
V.  Tibbitts,  19  Wise.  438 

339,  628, 
Weed  V.  Case,  55  Barb.  534 
AVeeks  r.  Love,  50  N.  Y.  568 
v.  Pryor,  27  Barb.  79 
Weil  r.  Howard,  4  M^ev.  384 
V.  Lankins,  3  Neb.  384 
Weir  V.  Groat,  6  N.  Y.  S.  C.  444 
Weire  v.  Davenport,  11  Iowa,  49 

Weise  v.  Gerner,  42  Mo.  527 
Welch  V.  Hazelton,  14  How.  Pr.  97 
AVells  V.  Cone,  55  Barb.  585         247, 
I'.  Henshaw,  6  Bosw.  625 
r.  Jewett,  11  How.  Pr.  242 
V.  Stewart,  3  Barb.  40        196, 
V.  IMcPike,  21  Cal.  215 
V.  Strange,  5  Geo.  22 


707, 
730 

290 
164 
369, 
370 

804 
435, 
531 

652 

358 
151 

711 

698 
163 

527 

615 

483 
394 
198 
605, 
609 
803 

814 
422 
315 
713 
694, 
732 

213 
630 
423 
117 

622 

172 

312, 
652 
607 
274 
773 
493 
315 
370 
178, 
179 
164 
822 
264 
818 
515 
198 
674 
305 


TABLE    OF    CASES    CITED. 


liii 


Welles  V.  Yates,  44  N.  Y.  525  96,  97 

Welsh  V.  Darragh,  5'2  N.  Y.  590  605 

West  V.  Crawfordsville,  &c.  Co.,  19 

Ind.  242  711 

V.  His  Creditors,  8  Eob.  123      465 

V.  Moody,  33  Iowa,  137      817,  819 

V.  Randall,  2  Mason,  181     306,  308 

Westcott  V.  Brown,  13  Ind.  83     670,  710 

Western  Bank  v.  Sherwood,  29  Barb. 

383  187 

Western  R.  R.  v.  Nolan,  48  N.  Y. 

513  165,  296,  308 

Westfall  V.   Dungan,   14    Ohio   St. 

276  774 

West  Midland  R.  Co.  v.  Nixon,  1  H. 

&  M.  176  312 

Weston  V.  Keighley,  Finch,  82  299 

V.  Lumley,  33  Ind.  486  742 

Wetherell  v.  Collins,  3  Mad.  255         429 

Wetniore  v.  San  Francisco,  44  Cal. 

294  153,  159,  696,  706,  707,  725 

Weyburn  v.  White,  22  Barb.  82         181, 

184 
Weymouth  r.  Boyer,  1  Ves.  416  807 

Whaley  v.  Dawson,  2  Sch.  &  Lef. 

370  519 

Whalon  v.  Aldrich,  8  Minn.  348         805, 

806 

V.  Aldrich,  8  Minn.  346  759 

Wheatley  v.  Strobe,  12  Cal.  92  152 

Wheeler  v.  Billings,  38  N.  Y.  263       673, 

692,  694 
V.  Floral  Mill  Co.,  9  Nev. 
254  569 

Whitaker  v.   Whitaker,   52    N.   Y. 

368  370 

Whitbeck  v.  Skinner,  7  Hill,  53  751 

White  V.  Allen,  3  Oreg.  103  716 

V.  Cox,  46  Cal.  169  483 

V.  Hawkins,  16  La.  An.  25        465 

V.  Joy,  13  N.  Y.  83  547 

V.  Lyons,  42  Cal.  279  83,  84, 

102,  548,  565 

V.  Moses,  11  Cal.  69  733 

V.  Parker,  8  Barb.  48  221 

V.  Phelps,  14  Minn.  27  161 

V.  Smith,  46  N.  Y.  418       698,  725 

V.  Spencer,  14  N.  Y.  247    645,  715 

Whitehill  v.  Shickle,  43  Mo.  537  129 

White  Sulphur  Springs  Co.  v.  Holly, 

4  W.  Va.  597  172 

Whitman  v.  Keith,  18  Ohio  St.  134 

162,  173 
Whitney  v.  Allaire,  1  N.  Y.  305  751 

r.  Chicago,   &c.   R.   R.,  27 

Wise.  327.  627 

V.  McKinney,  7  Johns.  Ch. 

144  411, 429 

Whitted  V.  Nash,  66  N.  C.  590  455 

Whittemore  v.  Watts,  7  Rob.  10  465 

Whittenhall    v.    Korber,    12    Kans. 

618  349 

Whitworth  v.  Davis,  1  V.  &  B.  550     522 
Widener  v.  State,  45  Ind.  244  670 

Wigand  v.  Sickel,  3  Keyes,  120  621 


Wiggins  V.  McDonald,   18  Cal.  126 

83,  84,  164,  165,  166 
Wilcox  t'.  McCoy,  21  Ohio  St.  655  495 
Wild  V.  Board  of  Supervisors,  9  How. 

Pr.  315  217 

Wildbahn  v.  Robidoux,  11  Mo.  659      710 
Wilde  V.  Haycraft,  2  Duval,  309  445 

Wilder  v.  Boynton,  63  Barb.  547        709, 

805,  806 
Wiles  V.  Suydam,  6  N.  Y.   Sup.  Ct. 

292  483,  517,  529 

Wilkes  V.  Morehead,  Stanton's  Code, 

31  (n.)  164 

Wilkins  v.  Batterman,  4  Barb.  47       201 

V.  Fry,  1  Meriv.  244      294,  310, 

521 

V.  Stidger,  22  Cal.  231  583 

Wilkinson  v.  Fowkes,  9  Hare,  193       878 

V.  Hall,    1    Bing.    N.    C. 

713  226 

V.  Henderson,  1  My.  &  K. 

582  852 

V.  Parish,  3  Paige,  653       420 

Willard  v.  Eastham,  15  Gray,  328       372 

V.  Giles,  24  Wise.  319  708 

V.  Reas,  26  Wise.  540    251,  2.57, 

338,  339,  484 

Willett  V.  Porter,  42  Ind.  250  335 

V.  Willett,  3  Watts,  277  619 

Williams  v.  Allen,  29  Beav.  292  407 

V.  Brown,  2  Keyes,  486        153, 

196,  199,  819 

V.  Franklin,  &c.  Assoc,  26 

Ind. 310  711 

V.  Hayes,  5  How.  Pr.  470  93 
V.  McGrade,  13  Minn.  46  652 
V.  Meeker,  29  Iowa,  292  386, 
388 
V.  Norton,  3  Kans.  295  151, 
159,  183 
I'.  Peinny,  25  Iowa,  436  172 
V.  Scott's  Adm'r,   11  Iowa, 

475  852 

V.  Smith,  49  Me.  564  429 

V.  Thorn,  11  Paige,  459         188 
V.  Weiting,  3  N.  Y.  S.  C. 

439  817 

V.  Van   Tuyl,   2   Ohio   St. 

836  422 

V.  Young,  21  Cal.  172  185 

Williamson  v.  Brown,  15  N.  Y.  354     201 
Williams  Mower,  &c.  Co.  v.  Smith,  83 

Wise.  5.30  711 

Willie  V.  Lugg,  2  Eden,  78  803 

Wills  V.  Slade,  6  Ves.  498  300 

V.  Pac.  R.  R.,  35  Mo.  164  579 

V.  Wills,  34  Ind.  106     548,  551,  579 

Willson  V.  Cleaveland,  30  Cal.  192     742, 

743 
Wilson  V.  Bell,  17  Minn.  61  396 

V.  Castro,  31  CaL  420      333,  517, 
520 
V.  Clark,  20  Minn.  367  569 

V.  Clark,  11  Ind.  385  160 

V.  Moore,  1  My.  &  K.  126        298 


liv 


TABLE   OF   CASES   CITED. 


Wilson  V.  Noonan,  85  Wise.  321  722 

V.  Koot,  43  Ind.  486  670 

V.  Tlioinpson,  Stanton's  Code, 

p.  60  484,  630 

Wiltsie  V.  Nortliam,  3  Bosw.  162  773 

Wing  V.  Davis,  7  Grcenl.  31  301 

V.  Dufian,  8  Bush,  583  677 

Wingard  v.  Banning,  39  Cal.  543         426 

Winslow  V.  Clark,  47  N.  Y.  261     396,  429 

V.  Dousman,  18  Wise.  456     398, 

399,  493 

V.  Minn.  &c.  R.  R.,  4  Minn. 

313,  316  405 

Winter  v.  Winter,  8  Nev.  129  691 

Winters  v.  Rush,  34  Cal.  136  213 

Wiser  v.  Blaehl y,  1  Johns.  Ch.  437     378, 

402,  455 

Wiswell  V.  Tefft,  5  Kans.  263  710 

Witliers  v.  Bircham,  3  B.  &  C.  254  225, 226 

Wolf  V.  Banning,  3  Minu.  202     283,  371, 

374,  382,  393 

r.  H.,  13  How.  Pr.  84  762,  773 

V.  Schofield,  38  Ind.  175    683,  584, 

670 

Wolff  y.  Stoddard,  25  Wise.  503  574 

Wood  V.  Anthony,  9  How.  Pr.  78        483 

V.  Brown,  34  N.  Y.  337  400 

V.  Cullen,  13  Minn.  394  129 

V.  Dummer,  3  Mason,  315  433 

V.  Luseomb,  23  Wise.  287  358 

V.  Olney,  7  Nev.  109  340,  628 

V.  Ostram,  29  Ind.  177        693,  734 

V.  Perry,  1  Barb.  114  187 

D.  White,  4  My.  &  C.  460  311, 

312,  411 

V.  Williams,  4  Mad.  186  297 

Woodbury  v.  Deloss,  65  Barb.  501     181, 

511,  512 
Wooden  v.  Waffle,  6  How.  Pr.  145      92, 

546,  565 
Woodford  v.  Leavenworth,  14  Ind. 

311  77,  78 

Woodruff  V.  Garner,  27  Ind.  4    767,  785, 

794,  813 
Woodward    v.   Anderson,   9    Bush, 

624  278 

r.   Laverty,    14    Iowa, 

381  820 

V.  Wood,  19  Ala.  213     301, 
308 
Woodworth  v.   Campbell,  5  Paige, 

518  300 

V.   Knowlton,   22    Cal. 

164  663,  708 

V.  Sweet,  51  N.  Y.  8 ; 

44  Barb.  268  370 

Woody  V.  Jordan,  69  N.  C.  189     655,  817 
Wooster  v.   Chamberlin,    28    Barb. 
602  335,  349 


Woolsey  v.  Williams,  84  Iowa,  413    560, 

603 
Worrall  v.  Munn,  38  N.  Y.  137  526 

Worth  V.  Fayetteville,  1  Wins.  (No.  2, 

I<:q.)  70  172 

Wotten  V.  Copeland,  7  Johns.   Ch. 

140  300,  420 

Wright  V.  Bundy,  11  Ind.  398  304, 

393 

V.  Conner,  34  Iowa,  240  483 

V.  Delafield,  25  N.  Y.  266        786 

V.  Hooker,  10  N.  Y.  51  612 

V.  Howell,  35  Iowa,  288  392 

V.  MeCormick,  67  N.  C.  27      690 

V.  Post,  3  Conn.  142  224 

V.  Storrs,  32  N.  Y.  691  247 

V.  Tinsley,  30  Mo.  389  212 

V.  White,  14  La.  An.  590         465 

V.  Wilcox,  19  Wend.  34.i         361 

V.  Wright,  64  N.  Y.  437      83,  85, 

285.  370,  733 

Wyman  v.  Remond,  18  How.  Pr.  272    615 

Wynn  v.  Corry,  43  Mo.  301  89,  98 


X. 

Xenia  Br.   B'k   v.  Lee,  7  Abb.  Pr. 
372  797,  814 


Yale  V.  Dederer,  18  N.  Y.  265 ;   22 

N.  Y.  450  370,  372 

V.  Hoopes,  12  La.  An.  311  465 

Yaney  v.  Teter,  39  Ind.  305  653 

Yates  ;;.  Compton,  2  P.  Wms.  308       310 
V.  Froot,  12  Johns.  1  226 

Yeates  v.  Walker,  1  Duv.  84  481 

Yeatman  v.  Estill,  3  La.  An.  222  465 
Yorks  V.  Peck,  14  Barb.  644  224,  327 
Young  V.  Board  of  Comm'rs,  25  Ind. 

295  269 

V.  Catlett,  6  Duer,  437  662 

V.  Coleman,  43  Mo.  179  485 

V.  Marshall,  8  Blng.  43  623 

V.  N.  Y.,  &e.  Steamship  Co., 

10  Abb.  Pr.  229  339,  409 

Youngs  V.  Kent,  46  N.  Y.  672  673 


z. 


Zabriskie  v.  Smith,  13  N.  Y.  322  178, 
179,  181,  183,  184.  247,  275 
Zimmerman  v.  Schoenfeldt,  6  N.  Y. 

S.  C.  142  424 

Zorger   i'.    Town'p    of   Rapids,    36 

Iowa,  175  173 


CIVIL    11 E  M  E  D  I  E  S. 


CIYIL    llEMEDIES. 


INTRODUCTORY    CHAPTER. 

§  1.  By  far  the  greater  portion  of  any  actual  system  of  juris- 
prudence consists  of  commands  that  create  and  define  those 
rights  and  corresponding  duties  which  control  the  normal  rela- 
tions of  individuals  with  each  other  and  with  the  body  politic  of 
which  they  are  members.  Some  of  these  rights  and  their  corre- 
sponding duties  govern  the  relations  alone  of  the  state  with  indi- 
viduals, and  are  properly  termed  public;  the  others  are  confined 
to  the  relations  of  individuals  Avith  each  other,  and  are  called 
private.  As  these  rights  and  duties  form  the  very  substratum  of 
the  whole  law,  as  the  law  and  all  the  machinery  of  administra- 
tion exist  solely  to  declare  and  enforce  them,  as  they  are  in  fact 
the  very  end  and  object  of  legislation  and  government,  they 
may  be  and  are  by  most  juridical  writers  appropriately  styled 
primary  rights  arid  duties.  If  mankind  were  absolutely  perfect 
so  that  disobedience  would  be  impossible,  if  it  were  certain  that 
every  command  uttered  by  the  Supreme  Power  would  be  volun- 
tarily obeyed  by  those  to  whom  it  was  addressed,  the  law  would 
contain  nothing  else  than  an  enumeration  of  these  primary  rights 
and  duties.  Since,  however,  disobedience  is  possible,  and  these 
primary  rights  may  be  broken  and  duties  unperformed,  a  supple- 
mental branch  of  the  law  becomes  a  matter  of  necessity,  by  which 
obedience  may  be  enforced.  This  secondary  and  sup23lementary 
department  is  by  some  writers  called  the  "  sanctioning,"  because 
it  deals  with  the  sanctions  which  give  their  compulsive  efficacy 
to  the  commands  of  the  supreme  power.  I  shall,  however,  use 
the  term  remedial  as   descriptive   of   this  department,  since   it 

1 


2  CIVIL   REMEDIES. 

more  nearly  accords  witli  the  nomenclature  customary  among  law- 
3'ers  in  England  and  in  America. 

§  2.  Tliis  secondary  and  supplementary  or  remedial  depart- 
ment of  juvispiudence  has  to  do  with  remedies  and  -with  reme- 
dial rights  and  duties.  Remedies^  in  their  widest  sense,  are 
either  the  final  means  by  wdiich  to  maintain  and  defend  primary 
rights  and  enforce  primary  duties,  or  they  are  the  final  equiva- 
lents given  to  an  injured  person  in  the  place  of  his  original  pri- 
mary rights  which  have  Leen  broken,  and  of  the  original  primary 
duties  towards  him  which  have  been  unperformed.  Remedial 
rights^  or  rights  of  re7ned^,  are  rights  which  an  injured  person 
has  to  avail  himself  of  some  one  or  more  of  these  final  means,  or 
to  obtain  some  one  or  more  of  these  final  equivalents.  Remedial 
duties  are  secondary  duties,  devolving  upon  the  party  who  has 
infringed  upon  the  primary  rights  of  another,  and  failed  to  per- 
form his  own  primary  duties  towards  that  other,  to  make  the 
reparation  provided  by  some  one  or  more  of  these  final  means, 
or  furnished  in  some  one  or  more  of  these  equivalents.  One  or 
two  familiar  and  simple  examples  will  illustrate  and  explain  these 
abstract  definitions.  A.  and  B.  have  entered  into  a  contract  by 
which  the  latter  has  agreed  to  sell  and  deliver  to  the  former  a 
quantity  of  merchandize  :  analyze  the  results  of  this  relation. 
A.  has  the  right  that  B.  should  transfer  and  deliver  to  him  the 
goods  referred  to,  and  a  corresponding  duty  rests  upon  B.  to 
make  the  transfer  and  delivery.  This  right  and  this  duty  are 
I^rimary.  B.  fails  to  perform,  and  thereupon  a  new  secondary 
right  in  A.  arises,  and  a  new  secondary  duty  of  B.  A.'s  new 
right  is  to  have  the  remedy  which  the  law  permits  in  such  a  case, 
and  B.'s  neAV  duty  is  to  grant  this  remedy;  this  new  right  and 
this  new  duty  are  remedial.  The  remedy  given  under  such  cir- 
cumstances is  a  pecuniary  comj)ensation,  a  sum  of  mone}'  in  the 
place  of  the  goods,  which  in  our  legal  nomenclature  is  termed 
damages.  In  this  instance  the  remedy  is  plainly  an  equivalent. 
A.'s  primary  right  was  to  acquire  the  ownership  and  the  posses- 
sion of  the  corpus  of  the  goods ;  B.'s  primary  duty  was  to  trans- 
fer the  ownership  and  possession  of  that  corpus.  The  remedy, 
however,  is  not  the  ownership  and  possession  of  the  merchan- 
dize, but  the  ownership  and  possession  of  a  sum  of  money  instead 
thereof.  It  is  a  moral  and  indirect  means  of  enforcing  the  pri- 
mal y  right,  because  it  may  induce  B.  to  perform  his  primary  duty 


INTRODUCTORY   CHAPTER.  6 

and  deliver  the  goods;  but,  if  it  does  not  produce  that  effect,  it 
is  an  equivalent  for  the  ownership  and  possession  of  the  articles 
themselves.  In  this  instance  we  have  a  given  primary  right  and 
dut3%  a  breach  thereof  by  non-performance,  a  new  remedial  right 
and  duty  in  the  place  of  the  primary  ones,  and  a  remedy  differ- 
ent from  but  equivalent  to  those  originals.  This  famiHar  exam- 
ple illustrates  every  case  of  remedy  by  a  pecuniary  compensation 
in  the  place  of  the  primary  right  and  duty  which  have  been 
broken.  Another  example  will  be  sufficient.  A.  and  B.  have 
entered  into  a  contract  by  which  the  latter  has  agreed  to  convey 
a  certain  farm,  and  to  execute  and  deliver  a  deed  thereof  to  the 
former.  Here  A.'s  primary  right  is  to  have  B.  convey  the  farm, 
which  is  done  by  executing  and  delivering  the  deed  and  by  sur- 
rendering possession  of  the  land.  B.'s  corresponding  primary 
duty  is  to  perform  these  acts.  Upon  B.'s  refusal,  A.  is  at  once 
clothed  with  a  new  and  remedial  right,  and  B.  is  subjected  to  a 
new  and  remedial  duty.  Under  these  circumstances  the  law  gives 
a  remedy  which  is  the  same  as  the  end  which  was  to  be  attained 
by  the  primary  right  and  duty  themselves  ;  that  is,  the  convey- 
ance of  the  land.  In  other  words,  the  law  will  compel  B.  to  do 
just  what  he  in  terms  contracted  to  do,  —  execute  and  deliver 
the  deed  and  surrender  the  possession.  Here  the  secondary, 
remedial  right  and  duty  are  the  same  as  the  original  primary 
right  and  duty ;  and  the  remedy  itself  is  not  an  equivalent  to, 
but  is  identical  with,  the  result  to  be  reached  by  such  primary 
right  and  duty.  The  remedy,  however,  is  plainly  a  means  by 
which  A.  maintains  his  primary  right,  and  enforces  the  primary 
duty  which  B.  owes  to  him,  for  by  it  the  self-same  right  is 
upheld,  and  the  self-same  duty  is  performed. 

§  3.-  When  the  primar}^  rights  and  duties  are  public,  that  is, 
when  they  govern  the  relations  alone  of  the  State  with  individ- 
uals, the  remedies  for  the  violation  thereof  are  public,  and  the 
larger  portion  of  them  are  criminal.  When  the  primary  rights 
and  duties  are  private,  that  is,  when  they  are  confined  to  rela- 
tions of  individuals  with  each  other,  the  remedies  are  also  pri- 
vate, or,  as  the}'^  are  frequently  termed,  civil.  This  treatise 
will  deal  with  the  latter  class  alone.  The  vast  majority  of  public 
remedies  are  designed  to  preserve  the  good  order  of  society,  and 
to  enforce  those  duties  of  individuals  towards  the  State  whose 
violations  are  called  crimes,  and  the  remedies  themselves  are 


4  CIVIL   REMEDIES. 

criminal  :  l)ut  there  are  other  piihlic  remedies  which  are  not  in 
any  respect  criminal.  The  remedies  to  which  I  now  refer  may, 
at  first  blush,  ai)])ear  to  be  private,  and  to  be  used  to  enforce 
some  riglits  that  belong  to  an  individual  rather  than  to  the  body 
politic ;  yet,  on  closer  examination  of  their  elements  and  objects, 
it  will  be  plainl}'  seen  that  they  are  strictly  public,  and  serve  to 
uphold,  rights  which  inhere  in  the  Commonwealth.  The  sub- 
division which  I  am  thus  describing  includes  those  judicial  pro- 
ceedings by  which  the  regular  organization  and  structure  of  the 
government  are  preserved  by  determining  the  conflicting  claims 
of  litigant  parties  to  occupy  and  hold  the  powers  and  functions 
of  some  particular  public  office.  The  individual  who  is,  or  who 
claims  to  be,  a  portion  of  the  governmental  organism,  by  virtue 
of  an  official  position  which  he  seeks  to  establish,  may  be  an 
actor  in  the  judicial  proceeding  ;  but  the  proceeding  is  not  insti- 
tuted, nor  is  the  determination  made,  on  his  own  personal  ac- 
count, nor  for  his  own  private  lienefit ;  the  State  is  in  theory 
and  in  practice  the  party  primarily  interested,  and  the  rights  of 
the  State. are  maintained  and  established  by  the  judicial  decision. 
On  the  other  hand,  certain  remedies  whicli  have  the  outward 
appearance  of  being  public,  which  are  required  by  some  ancient 
and  arbitrary  rule  of  form  to  be  brought  in  the  name  of  the 
Commonw^ealth  or  of  the  people,  are  actually  private  and  civil. 
The  interposition  of  the  State  as  a  nominal  actor  is  merely 
formal,  and  the  rights  to  be  upheld  belong  to  individuals  in  their 
private  characters  and  capacities.  Remedies  and  remedial  rights 
of  this  last  class,  being  strictly  private  and  civil,  fall  within  the 
scope  of  the  present  work,  while  those  of  the  preceding  class  are 
not  embraced  within  its  design. 

§  4.  I  shall  in  this  Introductory  Chapter  state  and  explain  the 
general  plan  of  the  following  treatise  upon  the  Civil  Action  of 
the  reformed  American  System  of  Procedure,  and  upon  the 
Remedies  which  may  be  obtained  and  the  remedial  rights  which 
may  be  secured  by  its  means.  For  purposes  of  convenience,  and 
to  exhibit  the  sequence  of  thought  in  the  clearest  possible  man- 
ner, the  prefatory  matter  will  be  separated  into  subdivisions  or 
sections,  each  embracing  a  single  topic.  As  a  preliminary  to  the 
purposes  thus  stated,  a  rapid  sketch  and  general  outline  of  the 
system  which  prevailed  prior  to  the  reformatory  legislation  of 
New  York  and  of  other  States  will  be  necessary. 


INTRODUCTORY   CHAPTER.  5 

SECTION    FIRST. 

THE    REMEDIAL    SYSTEM    PRIOR    TO    THE    MODERN    REFORMS. 

§  5.  Previous  to  any  sweeping  changes  made  by  statute,  justice 
was  administered  in  England  and  in  those  States  wliich  liad  bor- 
rowed the  English  methods  unaltered,  by  two  distinct  sets  of 
courts,  and  b}'-  two  different  systems  of  procedure, —  the  legal 
and  the  equitable.  All  the  ordinary  'remedies  which  could  be 
granted  to  a  party  in  the  courts  of  law  as  distinguished  from 
those  of  equity,  and  in  fact  all  the  ordinary  remedies  which  the 
common  law  knew  and  furnished,  were  administered  through  and 
by  means  of  certain  fixed  and  well-defined  forms  of  proceeding, 
known  as  the  "  common-law  actions "  or  "actions  at  law."  I 
sa}'^  all  the  ordinary  remedies,  because  in  addition  to  those  which 
were  thus  obtained  by  means  of  the  determinate  actions  at  law, 
there  were  some  others,  exceptional,  ancillary,  and  extra-ovdiwAvj 
in  their  nature,  wliich  were  obtained  by  means  of  certain  special 
proceedings  that  were  not  properly  actions.  Among  these  special 
proceedings  —  and  they  are  mentioned  as  illustrations  of  my 
meaning  only, —  were  the  writ  of  habeas  corpus^  the  writ  of 
mandamus,  and  the  like.  The  number,  nature,  and-j)urposes  of 
these  various  common-law  actions,  and  of  these  common-law 
special  proceedings,  were  fixed,  and  had  remained  unchanged  for 
several  centuries.  This  fact  was  not,  however,  peculiar  to  Eng- 
land and  to  the  common  law.  It  is  found  to  have  been  a  uni- 
versal principle,  so  far  as  the  researches  of  historical  jurists  have 
thrown  any  light  upon  the  subject,  that  in  the  earlier  and  forma- 
tive periods  of  every  national  jurisprudence,  and  subsequently 
until  a  change  was  effected  in  them  by  direct  legislation,  the  civil 
remedies  were  bound  up  in  and  administered  by  determinate 
forms  of  judicial  procedure,  which,  while  well  defined  and  firmly 
established,  were  highly  artificial  and  arbitrary,  and  of  which  the 
common-law  actions  may  be  taken  as  the  types.  The  Roman  and 
the  English  systems  of  jurisprudence  are  the  only  ones  which 
have  passed  through  an  entire  course  of  development,  from  the 
rudest  archaic  stage  to  a  final  condition  of  enlightened  equity 
and  refined  morality,  and  whose  history  throughout  this  com- 
pleted progress  is  open  for  our  study.     The  law  of  other  coun- 


6  CIVIL   REMEDIES. 

tries,  broken,  fragmentary,  and  imperfect  as  it  may  have  come  to 
our  knowledge,  clearly  shows  the  influence  of  the  principle  ;  l)ut 
in  that  of  Rome  and  of  England  it  was  established  in  its  full 
force,  and  worked  out  its  perfected  results  in  the  manner  and 
form  of  the  legal  growth.  The  subject  of  the  present  section 
will  be  considered  under  three  heads  :  I.  The  universal  prin- 
ciple of  legal  development  in  respect  to  remedies  and  remedial 
rights;  II.  The  workings  of  this  principle  in  the  Roman  law; 
III.  The  workings  of  the  same  principle  in  the  English  law. 

I.   The  Universal  Principle  of  Legal  Development  in  Respect  to 
Remedies  and  Remedial  Rights. 

§  6,  In  the  very  infancy  of  a  nation,  while  the  people  with 
great  potentialities  are  hardly  emerged  from  the  latter  stages  of 
barbarism,  and  the  law  is  rude  and  severe  without  an  element  of 
equity  or  abstract  justice  and  morality,  there  are  found  to  exist 
a  certain  number  of  purely  artificial  and  highly  arbitrary  forms  of 
judicial  procedure,  which  we  may  term  actions,  through  which 
all  the  civil  rights  and  duties  acknowledged  and  provided  for  are 
protected  and  enforced.  Their  origin  must  be  referred  to  the 
most  primitive  tribal  customs  of  the  peoples.  These  certain, 
fixed,  and  arbitrary  forms  are  the  very  centre  of  the  entire  legal 
system  ;  and  there  is  hardly  a  general  statement  of  primary  rights 
and  duties  separate  and  a})art  from  the  statement  of  these  actions 
and  rights  of  action.  The  national  code,  to  use  a  term  which  is 
very  inappropriate  to  a  law  in  such  a  shape,  consists  almost 
entirely  in  a  description  of  these  forms  of  procedure  and  of  the 
strict  and  severe  remedies  which  may  be  enforced  by  their  means, 
and  of  the  times  when,  occasions  in  which,  and  persons  by  whom, 
they  may  be  used.  This  original  shape  and  character  of  the 
national  jurisprudence  is  preserved  through  long  periods  of  the 
subsequent  history.  There  appears  to  be  some  vital  connection 
between  these  artificial  and  arbitrary  external  forms  and  the 
barbarian  modes  of  thought,  moral  and  religious  conceptions  ;  and 
only  as  the  nation  gradually  works  out  of  the  barbarous  into  an 
enlightened  condition  does  the  arbitrary  element  of  unyielding 
form  begin  to  disappear,  and  to  be  replaced  by  simple  and  more 
just  processes. 

§  7.  Sir  Henry  Maine,  in  his  great  work,  "  Ancient  Law,"  has 


INTRODUCTORY    CHAPTER.  7 

shown  with  ahsolute  perfection  of  demonstration,  that  a  national 
system  of  jurisprudence,  in  its  progress  from  infancy  to  complete 
maturity,  inevitably  passes  tlu'ough  three  stages,  or  rather  is 
developed  by  the  means  of  three  very  different  agencies,  each  of 
which,  during  the  time  wlien  it  is  the  ruling  force,  stamps  upon 
the  whole  body  of  the  law  external  and  internal  characteristics 
peculiar  to  itself.  These  three  stages  or  means  of  development 
are  (1)  The  nse  of  fictions  or  fictitious  forms  contrived  to  meet 
some  new  occasion  that  has  arisen  in  the  social  movement,  which 
is  done  b}^  evading  the  existing  arbitrary  rules,  and  at  the  same 
time  preserving  the  appearance  of  retaining  these  same  rules  in 
full  operation.  (2)  The  introduction  of  equitable  conceptions, 
modes  of  procedure,  and  tribunals,  by  which  the  judges  openly 
and  avowedly  abandoning  the  ancient  arbitrary  modes  and 
maxims,  and  even  the  very  appearance  of  them,  create  in  their 
stead  new  methods  and  rules  based  upon  notions  of  abstract  right 
and  justice.  The  work  of  improvement  during  this  stage  is 
chiefly  done  by  the  courts  in  the  free  use  of  their  highest  func- 
tion, —  that  of  legislation.  (-3)  The  use  of  direct,  positive  legis- 
lation, the  legislature  as  the  supreme  power  in  the  State 
consciously  acting  uj)on  the  law  as  a  whole  and  effecting  changes 
in  it  in  accordance  with  some  preconceived  plan. 

§  8.  In  the  first  and  second  of  these  stages,  and  especially  in 
the  first,  the  external  forms  of  action  play  a  very  important,  and, 
in  fact,  the  only  part.  Starting  from  its  primitive,  rude,  incom- 
plete condition,  when  it  is  little  more  than  a  collection  of  the 
arbitrary  forms  I  have  described,  the  law  pursues  its  steady 
growth,  keeping  pace  with  the  re(piirements  of  an  advancing 
civilization  ;  but  the  original,  arbitrary  forms  dominate  over  the 
growth,  control  its  movement,  and  determine  its  shape  and 
character.  The  very  growth  itself  consists  in  modifications  and 
new  applications  of  the  old  legal  forms  and  actions  to  circum- 
stances and  cases  which  arise.  The  entire  law,  the  'national 
code,  —  to  use  the  expression  still  inaccurately,  —  is  not  a  state- 
ment in  abstract  of  the  primary  rights  and  duties  which  govern 
the  conduct^  of  individuals,  but  a  mere  statement  of  the  reme- 
dies which  an  individual  may  have  under  given  circumstances, 
by  pursuing  certain  arbitrary  and  artificial  modes  of  action.  All 
the  improvement  of  and  all  the  addition  to  the  law  consist  in 
two  classes  of  operations,  both  performed  by  the  judicial  magis- 


8  CIVIL    REMEDIES. 

trates  in  the  exercise  of  their  liigh  functions  ;  namely,  (1)  the 
invention  of  entirely  new  forms  of  action  to  meet  some  want, 
to  apply  to  some  new  classes  of  events  or  transactions  which 
have  arisen  in  the  social  activity  ;  and  (2)  in  the  extending  the 
old  and  existing  forms  of  action  so  as  to  include  cases  and  trans- 
actions not  originally  embraced  within  them.  This  work  is 
almost  entirely  done  by  the  judges,  although  occasionally  the 
legislature  intervenes,  and  at  one  blow  effects  the  change  or  the 
addition.  In  both  these  two  classes  of  operations,  but  es]jecially 
in  tlie  latter  one,  fictions  are  freely  resorted  to,  so  as  to  effect 
the  real  improvement,  —  the  new  adaptation,  —  Avhile  preserving 
the  appearance  of  a  strict  adherence  to  the  ancient  external 
form.  It  seemed  to  be  a  controlling  notion  in  the  minds  of  men 
during  that  period  of  development,  to  preserve  the  shell,  the 
outside  husk,  with  most  scrupulous  care,  while  the  kernel  was 
removed  or  replaced  by  fruit  of  another  kind. 

§  9.  The  instance  of  the  action  of  ejectment  in  the  English 
law  well  illustrates  my  statement,  both  as  to  the  general  method 
of  improvement  and  as  to  the  use  of  fictions  in  pursuing  that 
method.  This  action,  when  first  invented,  was  designed  solely  to 
enable  a  tenant  for  years  to  recover  possession  of  the  demised 
land,  during  the  continuance  of  the  term,  from  some  wrongful 
ejector  who  had  taken  and  kept  the  possession.  It  assumed  a 
real  demise,  an  actual  tenant,  and  a  wrongful  ejector  who  had 
the  possession;  it  was  used  only  under  these  circumstances;  it 
contained  no  fictions,  but  was  as  real  as  any  action  known  to  the 
law.  Prior  to  the  allowance  of  the  writ  upon  which  the  action 
was  based,  such  a  tenant  had  no  means  of  enforcing  his  claim  to 
the  land.  His  interest  was  not  looked  upon  as  an  estate,  nor  even 
as  a  right  of  any  description  which  the  courts  would  sustain.  In 
the  process  of  time,  however,  the  tenant  came  to  be  regarded  as 
clothed  with  a  definite  interest,  a  low  kind  of  estate,  and  the  ac- 
tion of  ejectment  was  invented,  as  described,  to  protect  his  right 
and  preserve  his  possession.  This  conception  of  the  action  con- 
tinued until  the  reign  of  Edward  III.,  or,  as  some  sa}',  until  that 
of  Henry  VII.  Subsequent  to  that  time  the  judgps  began  to 
contrive  the  series  of  fictions  which  rendered  the  action  of  eject- 
ment such  a  strange  anomaly  to  the  legal  student,  and  nuide  it 
the  usual  and  finally  the  only  means  of  trying  the  title  to  lands 
between  parties  who  adversely  claimed  to  own  the  same  in  fee. 


INTRODUCTORY    CHAPTER.  9 

In  the  first  place,  instead  of  a  real  tenant,  a  fictitious  tenant, 
Jolin  Doe,  was  substituted  as  the  plaintiff,  and  a  fictitious  demise 
to  him  from  the  actual  person  who  claimed  to  own  the  premises 
in  fee  and  sought  to  establish  his  ownership  by  this  legal  pro- 
ceeding. But  as  the  arbitrary  rule  of  the  law  required  that  the 
defendant  in  the  action  should  be  in  possession,  and  as  the  ad- 
verse claimant  of  the  fee  might  not  be  in  possession,  another  set 
of  fictions  was  contrived,  and  in  this  manner  the  action  was  at 
last  completely  transformed  from  its  oiiginal  purpose,  and  became 
the  only  mode  for  the  trial  of  titles  and  the  recovery  of  land  by 
the  absolute  owner  in  fee.^ 

§  10.  In  this  manner  a  legal  growth  proceeds  through  long 
periods  of  the  national  history.  The  legislature  interferes  but 
seldom  with  the  private  law,  with  the  rules  which  define  and 
control  the  rights,  duties,  and  relations  of  individuals  ;  its  occa- 
sional acts  of  amendment  are  to  correct  some  glaring  abuse,  or 
to  make  some  abrupt  change  which  has  seemed  to  the  courts  to 
be  impossible  by  their  ordinary  judicial  methods.  The  task  of 
developing  the  law  is  thus  left  almost  entirely  to  the  magistrates  ; 
and  they  proceed  step  by  step,  as  cases  arise,  by  using  the  actions 
with  which  they  are  familiar,  and  by  preserving  the  external 
forms  thereof,  onl}^  enlarging  their  scope,  and  increasing  the 
number  of  special  instances  to  which  they  apply.  From  this 
cause  the  private  law,  as  a  whole,  still  continues,  during  the 
periods  described,  to  be  an  enumeration  and  statement  of  the 
remedies  and  reliefs  which  injured  parties  may  obtain,  under 
sjiecified  circumstances,  by  following  the  well-defined  and  arbi- 
trary modes  prescribed  in  the  actions  and  special  proceedings 
which  the  courts  permit  or  require  to  be  used.  These  general 
propositions  will  now  be  illustrated  by  reference  to  the  Roman 
and  the  English  legal  history,  during  the  first  and  formative 
stages  of  each. 

II.   Tlie  Worhings  of  this  Principle  in  the  Roman  Lmv. 

§  11.  At  the  earliest  stage  of  the  Roman  law,  of  which  there  is 
any  certain  trace  remaining,  and  for  a  considerable  length  of  time 
subsequent  to  the  decemviral  legislation,  known  as  the  Twelve 
Tables,  there  were  five  actions  by  which  all  civil  rights  could  be 

i  Spence,  Eq.  Jur.  of  tlie  Ct.  of  Chan.  vol.  i.,  pp.  232,  233. 


10  CIVIL   REMEDIES. 

maintained.  Nothing  can  exceed  the  arbitrary  nature  and  intense 
formalism  of  these  proceedings.  It  would  be  needless  to  attempt 
a  detailed  description  of  these  curious  and  highly  dramatic  forms, 
and  the  reader  is  referred  to  the  commentators  upon  the  Roman 
law  for  a  minute  and  jDarticular  account  of  the  various  acts  which 
the  litigant  parties  must  perform,  the  phrases  which  they  must 
repeat,  the  symbolic  gestures  which  they  must  make.  Absolute 
accuracy  in  complying  with  the  established  formula  was  required  ; 
an}'  omission  or  mistake  of  a  word  or  movement  was  fatal.  Gains 
says:  "  But  all  these  actions  of  the  law  (^actiones  legis}  fell  grad- 
ually into  great  discredit,  because  the  over-subtlety  of  the  ancient 
jurists  made  the  slightest  error  fatal."  ^  The  most  ancient  and 
important  was  the  "action  of  the  wager"  (^actio  sacramenti)^  so 
named,  because  both  parties  deposited  with  the  magistrate  a 
certain  sum  as  a  wager,  which  the  loser  forfeited  to  the  public 
treasury.  The  proceedings  were  highly  dramatic  and  symbolic, 
representing  to  the  eye  the  legal  conception  which  was  the  basis 
of  the  action.  It  came  to  be  used  solely  for  enforcing  rights  of 
property  over  things.  The  second,  the  "  action  by  demanding  a 
jury  "  {actio  judicis  postulat to') ^  was  so  called,  because  the  magis- 
trate was  asked  to  allow  the  appointment  of  an  arbiter  or  juri/ 
man  to  decide  the  matter  in  dispute.'^  Little  is  known  of  its 
forms  or  objects ;  but  it  seems  to  have  been  used  to  enforce  the 
fulfilment  of  an  obligation  when  the  engagement  of  the  parties 
was  not  definite  and  certain,  and  some  latitude  of  opinion  was 
possible  in  the  decision.  Another,  the  '•  action  of  notice  "  (actio 
condictio')^  so  called  because  the  plaintiff  gave  notice  to  the  de- 
fendant that  he  must  appear  before  the  magistrate  in  thirty  days, 
was  employed  in  case  of  all  definite  obligations.  The  "  action  by 
arrest  "  (actio  per  manus  hijectionem)  was  a  proceeding  by  which 
the  defendant  was  arrested,  and  immediately  brought  before  the 
magistrate.  Finally,  in  the  "  action  by  taking  pledge  "  (actio  per 
pignoris  capionetn'),  something  belonging  to  the  defendant  was 
seized  as  security  for  the  debt.  These  two  latter  were  in  reality 
proceedings  in  execution  to  enforce  a  judgment  rendered  in  some 
prior  suit.^ 

1  Institutes  of  Gaius,  bk.  iv.  §  30.  action  performed  exactly  tiie  same  func- 

2  The  translation  "jury  man,"  repre-     tion  as  our  jury.     The  magistrate  stood 
sents  far  more  correctly  the  meaning  of    in  the  place  of  our  court. 

"judex  "   than   the   common    translation  ■^  These  and  otlier  Roman  law  actions 

"judge."     The  "judex"  iu  the  liouian     are  fully  described  iu  Sandars's  Inst,  of 


INTRODUCTORY    CHAPTER.  11 

§  12.  As  these  most  ancient  forms  became  disused,  and  Avere 
finally  abandoned,  their  place  was  supplied  by  certain  other  judi- 
cial processes,  to  which  the  generic  name,  formula,  was  given, 
conducted  before  the  magistrates  of  whom  the  most  important 
were  the  prsetors  (prcetor  tirbanus  and  prcetor  peregrinus).  The 
Roman  praetor  corresponded  to  the  English  judges,  common  law 
and  equity,  while  the  "judex"  performed  the  functions  of  the 
English  jury.  As  the  English  courts  have  built  up  by  gradual 
accretions  the  greater  part  of  the  law  of  England,  so  did  the  prse- 
tors, as  truly  and  by  the  use  of  the  same  judicial  legislative  func- 
tion, build  up  the  largest  part  of  the  Roman  jurisprudence,  which, 
after  being  put  into  a  more  comprehensive  and  scientific  shape 
by  the  labors  of  the  great  jurists  under  the  empire,  was  at  last 
codified  by  the  orders  of  Justinian.  The  legislative  work  of  the 
English  and  American  courts  is  done  in  the  judgments  and  opin- 
ions rendered  upon  the  decision  of  cases  after  the  events  have 
happened  which  call  for  such  official  utterances.  The  same 
work  of  the  Roman  prajtors  was  done  in  the  edicts  Qedicta') 
which  they  issued  upon  taking  office,  and  which  in  process  of 
time  became  one  continuous  body  of  law,  each  magistrate  taking 
that  which  had  been  left  by  his  predecessors,  and  altering, 
amending,  and  adding  to  the  same  as  the  needs  of  an  advancing 
civilization  required.  The  form  of  this  edict  was  peculiar. 
Instead  of  laying  down  general  abstract  propositions  defining 
primary  rights,  or  publishing  formal  commands  similar  to  modern 
statutes,  the  magistrates  announced  that  under  certain  specified 
circumstances  a  remedy  would  be  granted  by  means  of  a  desig- 
nated action.  In  this  manner  the  edlctal  or  praetorian  law  took 
on  the  peculiar  form  I  have  already  described,  and  ever  kept  in 
view  the  remedies  and  the  actions  by  which  they  might  be  ob- 
tained as  the  very  central  conception  of  the  whole  system. 

§  13.  From  generation  to  generation  and  from  century  to  cen- 
tury ideas  of  abstract  right  and  justice  more  and  more  controlled 
the  legislative  action  of  the  prsetors  ;  ancient  arbitrariness  was 
gradually  abandoned,  and  practical  rules  became  equitable.  This 
result  was  accomplished  by  three  separate  processes,  —  (1)  by 
extending  the  old  forms  of  action  to  new  cases,  (2)  by  con- 
Justinian,  Introd.  pp.  59-62.  See  also  by  Gains,  pp.  407-422  ;  Commentaries  of 
"  Roman  Law,"  by  Lord  ALackenzie,  pp.  Gains,  by  Abdy  and  Walker,  pp.  257- 
315-317  ;  Toste's  Elemeiits  of  Ilomau  Law,    269. 


12  CIVIL    REMEDIES. 

triving  new  actions  analogous  to  the  old  ones,  and  (8)  finally, 
b}'  inventing  actions  entirely  different  in  principle  and  in 
method.  Fiction  played  a  prominent  part  in  the  earlier  stages 
of  this  progress,  and  equity  in  the  later.  The  proceedings  thus 
described  were  called  "  ordinary,"  and  were  strictly  analogous  to 
the  English  common-law  action  tried  before  a  court  and  jury. 
The  prsetor  was  the  magistrate  who  announced  the  law  in  his 
edict,  and  who  applied  this  law  to  each  case  as  it  came  before 
him,  by  designating  the  legal  principle  that  controlled  it,  and  by 
indicating  that  rule  in  the  pleadings  as  the  guide  to  its  final  de- 
cision. The  prretor  himself  did  not  make  this  decision  nor  pass 
upon  the  issues  of  fact.  They  were  referred  to  a  special  tribu- 
nal constituted  for  that  purpose,  generally  a  single  '•'' judex  ^^  or 
juryman,  sometimes  a  single  "'  arbiter,''''  who  seems  to  have  had 
greater  latitude  and  discretion  than  the  judex,  and  in  a  few 
specified  cases  a  larger  body  of  jury  men,  who  were  then  termed 
"  recuperatores,^'  or  "  centumviri.^'' 

§  14.  Side  by  side  with  this  ordinary  jurisdiction  of  the  prae- 
tor, there  grew  up  the  extraordinary  jurisdiction,  in  the  exercise 
of  which  he  decided  both  the  law  and  the  facts  without  the  in- 
terposition of  'dn J  judex  or  jury,  and  unhampered  by  any  techni- 
cal requirements  as  to  the  proper  "  formula  "  or  action.  Nothing 
could  be  simpler  than  the  whole  proceeding ;  the  plaintiff  alleged 
the  facts  making  out  his  cause  of  action  ;  the  defendant  an- 
swered, setting  up  his  defence  whole  or  partial ;  the  magistrate 
decided.  In  this  manner  the  praetor  was  enabled  to  grant  reme- 
dies not  provided  for  by  any  specified  action,  and  to  base  his 
judgments  upon  notions  of  right  and  justice.  In  this  extraordi- 
nary jurisdiction  of  the  Roman  praetor  we  plainl}''  have  the  jiro- 
totj^pe  of  the  English  Court  of  Chancery,  and  of  its  equitable 
powers  and  principles.^  Among  the  remedies  invented  in  the 
exercise  of  this  extraordinary  jurisdiction,  and  for  which  there 
was  no  provision  made  by  anj'^  known  action  or  formula,  were 
interdicts,  which  answered  to  our  injunctions,  both  preventive 

1  See  Sandars's  Inst,  of  Justinian,  In-  allelisni  between  the  pra?tor  wielding  his 

trod.  p.  70.     It  lias  sometimes  been  said  "  ordinary  "  jurisdiction  and  tiie  comnion- 

tlie  entire  functions  of  the  prajtor  are  re-  law  courts,  and  between  the  pra^or  wield- 

produced  in  tlie  modes  of   the  Court  of  ing  his  "extraordinarj^  "  jurisdiction  and 

Chancery  ;  but  tliis  is  a  mistake,  and  can  the  Court  of  Cliancery,  is  absolutely  per- 

only  have  resulted  from  a  misconception  feet, 
of  the  Koman  juridical  system.     The  par- 


INTRODUCTORY    CHAPTER.  13 

and  mandatory;  restitutions  (^restitutiones  {71  integruvi^,  by 
which  a  person  was  restored  to  his  former  position  ;  the  enforce- 
ment of  trusts  (^fidei-commissa)  ;  and  the  settlement  of  insolvents' 
estates  {tnissio  in  bonorum  possessionem^.  In  these  remedies 
we  find  all  the  most  important  and  peculiar  kinds  of  relief  con- 
ferred by  the  modern  Court  of  Chancery,  and  all  the  grand 
principles  which  make  up  the  body  of  modern  equity.  Inter- 
dicts, which  were  in  fact  broader  in  their  scope  than  our  injunc- 
tions, because  they  were  used  to  restrain  acts  of  mere  violence, 
played  a  very  prominent  part  in  the  theory  of  remedial  rights. 
Restitution  was  the  name  applied  to  a  large  class  of  remedies 
adapted  to  differing  circumstances  and  answering  to  numerous 
special  decrees  granted  by  our  equity  tribunals.  The  modern 
doctrine  of  trusts  was  confessedly  borrowed  from  the  fidei- 
commissa  ;  and,  although  its  scope  has  been  greatly  enlarged,  the 
principle  which  underlies  it  is  the  same.  Finally,  the  missio  in 
bonorum  possessionem  was  the  origin  of  the  systems  of  bank- 
ruptcy which  form  a  stable  part  of  the  jurisprudence  of  all  Euro- 
pean nations.  This  equitable  procedure,  after  running  side  by 
side  with  the  ordinary  or  legal,  grew  in  importance,  and  became 
in  time  the  only  practical  method  in  use, — every  litigation  being 
turned  into  the  praetor's  extraordinary  jurisdiction.  At  length, 
by  a  constitution  of  Diocletian  (A.  d.  294),  all  causes  in  the 
provinces  were  required  to  be  tried  in  this  manner  ;  and  shortly 
after  the  same  rule  was  made  universal  throughout  the  empire.-^ 
The  codification  made  by  the  direction  of  Justinian  contains 
only  this  sensible  and  natural  mode  of  administering  the  reme- 
dial department  of  the  law,  because  the  ancient  formalism  had 
long  before  disappeared. 

III.   The  Workings  of  this  Principle  in  the  English  Law. 

§  15.  The  same  facts,  the  same  underlying  principles,  and  the 
same  course  of  development  are  shown  in  the  history  of  the  Eng- 
lish law.  Bracton  (a.  d.  1256-1259)  modelled  his  treatise  upon 
the  Institutes  of  Justinian,  and  thus  gave  his  work  the  appear- 
ance of  some  scientific  order  and  method ;  but  his  book  was  cer- 
tainly in  advance  of  the  time  in  which  it  appeared,  and  the  law 

1  See  Lord  Mackenzie's  Roman  Law,  p.  319. 


14  CIVIL   REMEDIES. 

for  many  generations  and  even  centuries  did  not  follow  the  logical 
system  which  lie  borrowed  from  the  civilian  institutional  writers 
and  commentators.  With  those  jurists  lie  divided  all  actions, — 
all  the  common-law  actions,  for  as  yet  the  equitable  jurisdiction 
of  the  Court  of  Chancery  was  unknown  —  into  real,  personal, 
and  mixed  ;  and  this  classification  has  been  preserved  to  our  day, 
although  it  is  utterly  without  any  practical  results. ^ 

§  16.  Real  Actions.  —  Real  actions  were  based  upon  the  plain- 
tiff's, or  demandant's  as  he  was  called,  right  pf  property  in  the 
specific  thing  which  was  the  subject  of  controversy,  his  dotnmium  ; 
they  were  brought  to  establish  this  ownershij>,  and  sometimes  his 
right  of  possession  against  an  adverse  claimant  who  had  taken 
possession  and  asserted  ownership.  In  this  respect  they  were 
identical  with  and  plainly  copied  from  the  group  of  actions  in  the 
Roman  law  termed  "  vindications  "  (^vhidicationes).,  but  differed 
from  the  latter  in  being  confined  to  lands.  For  movables  there 
was  no  real  action,  no  vindication,  and  damages  alone  could  be 
sued  for.  The  ancient  real  actions  in  the  English  law  Avere  sepa- 
rated into  two  classes,  the  petitory^  in  which  the  controversy  was 
concerning  the  property  and  right  (^super  i^roprietate  etjure),  and 
sought  to  establish  such  property  ;  and  the  possessory,  in  which 
the  controversy  was  concerning  the  possession.  The  petitory  real 
actions  were  (1)  the  writ  of  formedon,  of  which  there  were  three 
varieties,  in  the  descender,  in  the  remainder,  and  in  the  reverter  ; 
(2)  the  writ  of  quod  se  deforcias,  for  owners  of  life  estates,  such 
as  dower  and  the  like  ;  and  (3)  the  writ  of  right,  to  recover  the 
absolute  fee.  The  possessory  real  actions  were  (1)  the  Avrit  of 
entry,  and  (2)  the  writ  of  assize,  of  which  there  were  two  varie- 
ties, assize  mort  d'ancestor,  and  assize  of  novel  disseisin.  The 
relation  of  the  possessor}^  to  the  petitory  actions  was  such  that 
an  appeal  to  the  former  did  not  preclude  the  subsequent  use  of 
the  latter,  while  on  the  contrary  the  first  use  of  petitory  actions 
prevented  all  recourse  for  ever  afterwards  being  had  to  tlie  pos- 
sessory.2 

§  17.  Mixed  Actions.  —  The  only  mixed  actions  spoken  of  by 
Bracton  were  those  employed  for  the  partition  of  lands  among 

1  Bracton  and  liis  Relation  to  the  Roman  actions,  tlieir  special  objects,  ami  their 
Law,  by  Giiterbock,  trans,  by  Brinton  procedure,  see  Blacks.  Coinm.  bk.  iii.  ch. 
Coxe,  pp.  1.30,  151.  10,  pp.  180-ly7. 

2  For  a  fuller  description  of  these  real 


INTRODUCTORY   CHAPTER.  15 

co-owners.  Others,  however,  were  siibsequently  invented  and 
placed  without  much  regard  for  logic  in  this  class.  The  most 
important  of  them  were  the  action  of  ejectment,  which  always 
preserved  the  foi-m  of  a  mere  possessory  proceeding,  although  it 
finally  took  the  place  of  even  the  petitory  real  actions  as  the 
means  of  trying  titles ;  the  action  of  waste,  in  which  the  jjosses- 
sion  of  the  land  wasted  by  the  tenant  and  damages  for  the  injury 
were  recovered  ;  and  quare  impedit,  which  was  confined  to  certain 
ecclesiastical  property. 

§  18.  Personal  Actions.  —  Personal  actions  (in  perso7iam')  were 
directed  against  the  particular  person  liable  ;  and  the  final  remedy 
which  they  conferred  was  always  a  sum  of  money.  Tliey  were 
separated,  according  to  the  nature  of  the  act  which  was  the  occa- 
sion of  putting  them  in  motion,  —  the  omission  or  delict  of  the 
defendant,  —  into  those  ex  contractu  and  those  ex  delicto  or  male- 
ficio.  The  arrangement  made  l)y  one  text-writer  of  authority, 
Mr.  Chitty,  in  his  treatise  on  Pleading,  includes  in  the  class  ex 
contractu  debt,  covenant,  assumpsit,  detinue,  and  account,  and 
in  the  ex  delicto  trespass,  case,  trover,  and  replevin.  It  is  difficult 
to  see  why  detinue  should  be  called  an  action  ex  contractu,  and 
replevin  an  action  ex  delicto.  Neither  more  than  the  other  is 
founded  upon  contract,  and  both  are  in  their  essence  actions  in 
rem,  —  vindications,  —  and  seek  to  recover  the  very  corpus  of  the 
goods.  This  is  a  striking  example  of  the  utter  want  of  consis- 
tency and  logical  order  running  through  the  treatment  of  the 
common  law  by  the  best  of  its  text-writers,  and  resulting  partly 
from  the  arbitrary  division  of  things  into  real  and  personal, 
lands  and  chattels,  and  of  property  therein  into  real  and  personal 
estates.  Because  the  taking  or  the  detention  is  in  itself  an  act  of 
wrong,  and  not  an  agreement,  some  writers  range  both  detinue 
and  replevin  in  the  class  ex  delicto. 

§  19.  A  sketch  of  the  origin  and  progress  of  these  actions 
through  various  stages  will  illustrate  the  workings  in  the  com- 
mon law  of  the  general  principle  that  I  am  discussing.  At  the 
earliest  times  there  were  only  four  personal  actions,  —  debt  and 
covenant  strictly  ex  contractu,  and  trespass  and  detinue.  An 
action  was  commenced  by  the  issuing  of  a  process  from  the  court, 
called  the  original  writ,  which  briefly  described  the  injury,  omis- 
sion, or  wrong  alleged  against  the  defendant,  and  indicated  by 
proper  technical  phrases  the  form   of  the   action  which   would 


16  CIVIL   REMEDIES. 

ensue.  As  "  debt "  was  tlie  appropriate  action  in  which  to 
recover  a  sum  of  money  upon  contract  where  the  amount  was 
already  reduced  to  a  certaint}',  as  "  covenant "  was  confined  to  the 
claim  for  damages  upon  tlie  breach  of  a  sealed  agreement,  as 
"  trespass  "  was  used  for  the  recovery  of  damages  resulting  from 
acts  of  violence  done  to  the  person  or  property  of  the  plaintiif 
(vi  et  armis),  and  as  "  detinue  "  was  a  proceeding  for  the  re- 
covery of  specific  goods  and  chattels  wrongfully  detained  from 
the  owner,  it  w'as  an  easy  matter  to  find  the  forms  of  writs  suited 
to  facts  and  circumstances  which  plainly  fell  within  some  one  of 
these  four  remedies.  If  the  debt  was  certain  in  amount,  if  the 
writing  was  sealed,  if  the  wrong  had  been  done  by  force,  or  if 
the  specified  tiling  of  the  plaintiff  was  withheld  from  his  posses- 
sion, the  form  of  proceeding  in  which  to  obtain  relief  was  well 
known,  determinate,  and  fixed.  But  when  events  happened, 
when  circumstances  occurred  quite  different  from  the  essential 
features  which  characterized  any  one  of  the  four  remedial  forms 
thus  described,  and  a  wrong  was  thereby  done  to  an  individual, 
it  was  by  no  means  certain  that  he  could  obtain  any  redress. 
These  four  actions  were  known,  and  no  others.  "  All  breaches 
of  contract  unwritten,  or  unsealed  if  written,  were  remediless, 
unless  they  created  an  absolute  and  stipulated  debt.  All  obli- 
gations arising  from  the  mere  acts  of  parties,  —  more  frequently 
called  implied  contracts,  —  which  form  so  large  a  part  of  the 
rights  that  courts  enforce  at  the  present  day,  and  which  spring 
from  the  plainest  principles  of  justice  and  equity,  were  unrecog- 
nized." ^  Undoubtedly  the  officers  of  the  Chancery  were  per- 
mitted and  expected  to  frame  writs  to  meet  new  cases  which 
did  not  depart  too  widely  from  the  existing  precedents ;  but  it  is 
known  historically  that  these  officials  were  reluctant  to  use  such 
an  authority,  and  the  common-law  judges  were  reluctant  to  yield 
to  it  when  used.  To  say  that  all  rights  and  duties  resulting  from 
fraud,  deceit,  negligence,  verbal  defamation,  and  other  wrongful 
practices  not  forcible,  were  ignored  and  unprotected,  would  per- 
haps be  too  sweeping  ;  there  are  faint  indications  that  the  action 
of  trespass  was  sometimes  resorted  to  in  cases  of  negligence, 
fraud,  and  slander,  but  the  instances  were  extremely  few,  and 
for  this  large  class  of  private  wrongs  there  was  substantially  no 
private  remedy. 

^  Pomeroy'a  Introd.  to  Munic.  Law,  §  199. 


INTRODUCTORY   CHAPTER.  17 

§  20.  At  this  point  the  legislature  interposed  in  aid  of  the 
courts,  and  during  the  reign  of  Edward  I.  (13  Edw.  I.  ch.  24, 
A.D.  1284)  Parliament  enacted  that  "Whenever  from  henceforth 
it  sliall  foi'tune  in  chancery  that  in  one  case  a  writ  is  found,  and 
in  like  case  falling  under  like  law  and  requiring  like  remedy  is 
found  none,  the  clerks  of  chancery  shall  agree  in  making  the 
writs."  Thus  was  opened  the  way  for  new  actions  and  reme- 
dies to  apply  to  all  the  new  circumstances  which  could  arise,  and 
the  judges  were  not  slow  to  avail  themselves  of  the  privilege, 
because  it  afforded  an  opportunity  not  only  to  do  prompt  and 
substantial  justice  between  parties,  but  also  to  enlarge  in  an 
unlimited  manner  their  own  jurisdiction.  The  modifications  and 
additions  were  made  in  the  action  of  trespass,  which  in  its  orig- 
inal conception  was  applicable  only  to  wrongs  accompanied  or 
caused  by  violence.  New  writs  were  framed  by  which  the  action 
was  extended  to  cases  where  the  injury  is  consequential  and  indi- 
rect. At  first  the  improvement  was  confined  to  instances  of  mal- 
feasance when  a  person  has  done  something  that  he  ought  not  to 
have  done.  Between  this  beginning  and  the  instances  of  mis- 
feasance,  or  doing  in  a  wrongful  manner  what  ought  to  have 
been  well  done,  the  division  line  was  shadowy,  the  step  was 
short  and  was  soon  taken.  Hence  arose  an  additional  class  of 
actions  known  as  "  trespass  on  the  case,"  or  simply  "  case," 
which  enabled  the  court  to  grant  the  relief  of  damage  for  fraud, 
deceit,  negligence,  want  of  skill,  defamation  oral  or  written,  and 
all  other  injurious  acts  to  jjerson  or  property  which  are  not  done 
by  direct  force.  In  the  process  of  time  a  second  additional  action, 
as  an  offshoot  or  species  of  "  case  "  was  invented,  but  was  con- 
fined in  its  operation  to  a  particular  kind  of  delict ;  namely,  the 
unlawful  detention  of  goods  and  chattels  from  their  owner,  and 
their  conversion  to  his  own  use  by  the  wrong-doer.  It  was  called 
"  trover,"  from  the  French  verb  trouver,  to  find,  which  invaria- 
bly occurred  in  a  fictitious  allegation  of  the  pleading  charging 
that  the  plaintiff  had  lost  the  chattel,  and  that  the  defendant 
had.  found  the  same,  and  had  converted  it  to  his  own  use.  As 
yet  there  was  no  remedy  for  the  breach  of  those  contracts  which 
could  not  be  enforced  by  the  actions  of  debt  or  of  covenant.  To 
supply  this  want,  the  courts,  still  retaining  the  idea  of  the  wrong 
done  by  the  defendant,  so  as  to  preserve  the  theoretical  connec- 
tion with  the  primitive  action  of  trespass,  extended  the  new  form 

2 


18  CIVIL    REMEDIES. 

of  proceeding  so  as  to  include  all  instances  of  7ionfea»ance^  or 
those  in  which  a  person  has  failed  or  refused  to  do  what  he  had 
actually  or  impliedly  promised  to  do.  This  step  in  advance  pro- 
duced the  action  of  "assumpsit,"  which  grew  to  be  the  most 
common  and  important  judicial  method  of  enforcing  legal  I'ights. 
Although  in  its  origin  ranked  with  the  ex  delicto  actions,  it  has 
long  been  regarded  as  belonging  entirely  to  the  class  of  those 
ex  contractu.  By  its  means  a  very  large  portion  of  the  mercan- 
tile and  commercial  law  has  been  added  to  the  jurisprudence  of 
England  and  of  America.  It  is  eminently  an  equitable  proceed- 
ing, free  from  arbitrary  and  artificial  rules  and  requirements. 

§  21.  The  ancient  real  actions  being  excessively  technical,  and 
entirely  unfitted  for  an  age  of  activity,  progress,  and  enlighten- 
ment, gradually  passed  out  of  use,  and  their  objects  were  accom- 
plished by  means  of  the  modified  "  ejectment "  enlarged  in  its 
scope  and  adapted  to  the  trial  of  titles  by  the  fictions  which  have 
been  already  described.  As  the  result  of  this  inventive  function 
of  the  courts,  we  find  in  England  and  in  the  United  States,  prior 
to  the  recent  amendatory  legislation,  the  following  common-law 
forms  of  action  by  which  civil  remedies  were  administered  :  tres- 
pass,  to  recover  damages  for  a  wrongful  act  of  violence  to  person 
or  property ;  case,  to  recover  damages  for  a  wrong  to  person  or 
property,  unaccompanied  by  violence,  or  when  the  injury  is  con- 
sequential ;  trover,  to  recover  damages  for  the  unlawful  detention 
and  conversion  of  chattels.  These  were  ex  delicto.  The  actions 
ex  contractu  were,  covenant,  to  recover  damages  for  the  breach  of 
a  sealed  agreement ;  debt,  to  recover  a  fixed  certain  sum  owed 
by  the  defendant,  not  as  damages ;  assurnpsit,  to  recover  dam- 
ao'es  for  the  breach  of  a  contract  not  sealed,  whether  written  or 
verbal,  express  in  its  terras  or  implied  by  law.  The  following 
bore  a  logical  resemblance  to  real  actions,  the  vindications  of  the 
Roman  law  :  ejectment,  to  recover  possession  of  land,  and  to  try 
the  title  thereto  ;  detinue  and  replevin,  to  recover  possession  of 
specific  chattels.  Replevin,  which  was  confined  to  certain  special 
cases  in  England,  had  been  generally  adopted  throughout  the 
United  States  in  the  place  of  detinue. 

§  22.  By  the  side  of  this  ordinary  procedure  of  the  common- 
law  courts  there  grew  up  the  extraordinary  jurisdiction  of  the 
Court  of  Chanceiy.  In  the  most  ancient  times  a  suitor  who 
could  not  obtain  relief  from  the  courts  of  law,  had  no  other  alter- 


INTRODUCTORY    CHAPTER.  19 

native  than  an  application  to  the  king  himself.  These  appeals 
were  entertained  by  the  king  and  his  council,  and  for  a  while  an 
imperfect  kind  of  justice  was  thus  administered  according  to  the 
notions  of  right  held  by  the  monarch  and  his  advisers.  As  the 
number  of  these  applications  increased  beyond  the  ability  of  the 
king  to  devote  to  them  his  personal  attention,  the  practice  arose 
of  referring  them  to  the  chancellor,  who,  in  his  high  official  char- 
acter of  confidential  adviser  to  the  Crown  and  chief  dignitary  of 
the  state,  seemed  to  be  the  most  appropriate  person  to  relieve  the 
king  of  these  judicial  duties.  In  the  22d  year  of  the  reign  of 
Edward  III.  (a.d.  1348-49)  a  general  order  was  made  referring 
all  such  matters  for  examination  and  decision  to  the  chancellor; 
and  from  that  epoch  the  Court  of  Chancery  dates  its  commence- 
ment as  a  special  tribunal,  possessing  an  exalted  jurisdiction  dis- 
tinct from  that  of  the  courts  of  law.  The  earliest  records  of  the 
court  show  that  occasionally  cases  were  brought  before  it  which 
clearly  belonged  to  the  ordinary  jurisdiction  of  the  common-law 
judges,  even  cases  of  personal  wrong  and  violence,  which  were 
properly  redressed  by  the  action  of  trespass.  These  instances, 
however,  were  verj^  exceptional  and  quickly  disappeared.  The 
judicial  functions  of  the  chancellor  soon  became  well  defined. 
The  procedure  in  equity  was  free  from  the  trammels  of  rigid 
forms  and  of  actions  constructed  upon  an  arliitrary  model,  and 
admitting  only  specified  kinds  of  relief;  the  final  remedies  in 
equity  could  not  only  be  based  upon  motives  of  abstract  justice, 
but  could  be  adapted  to  the  special  facts  in  each  particular  case 
and  to  the  rights  and  relations  of  all  the  parties  to  each  other. 
In  other  words,  the  chancellor  was  not  obliged  to  render  a  given 
form  of  judgment  or  none  ;  he  was  not  restricted  to  granting 
the  relief  of  a  sum  of  money  or  of  the  possession  of  a  given 
tract  of  land  or  of  a  given  chattel ;  he  might  and  did  vary  his 
decrees  in  every  possible  manner,  and  determine  the  rights  of  the 
litigant  parties  completely  and  finally. 

§  '23.  The  parallel  which  I  have  already  mentioned  between 
the  ordinary  or  legal  jurisdiction  of  the  Roman  prtetor  and  his 
extraordinary  or  equitable  jurisdiction  on  the  one  side,  and  the 
English  common-law  courts  and  their  methods,  and  the  Court  (jf 
Chancery  and  its  methods,  on  the  other  side,  is  perfect.  This 
parallelism  has  lately  been  carried  still  further  by  the  recent  action 
of   the  British   Parliament.     The   equitable  jurisdiction   of  the 


20  CIVIL   REMEDIES. 

Roman  magistrates  not  only  reacted  upon  the  ordinar}'  legal  juris- 
diction, introducing  more  and  more  the  influence  of  al)stract 
right  and  justice,  and  sweeping  away  the  ancient  arbitrariness 
and  devotion  to  external  forms ;  but  it  gradually  grew  in  magni- 
tude until  it  became  by  far  the  more  important  of  the  two. 
Exactly  the  same  process  has  gone  on  for  centuries  in  England. 
The  modes  and  the  notions  of  equity  gradually  penetrated  the 
common-law  tribunals  ;  equitable  principles  were  invoked  in  the 
decision  of  legal  actions  ;  the  common  law  has  become  scarcely 
distinguishable,  in  the  underlying  juridical  forces  which  govern 
its  movements,  from  the  mass  of  doctrines  which,  taken  together, 
are  called  equity  jurisprudence  ;  and  this  equity  jurisprudence 
itself  has  grown  to  be  vastly  superior,  in  magnitude  and  impor- 
tance, to  the  legal  division  of  the  d()ul)le  system  which  forms  the 
entire  law  of  England.  Finally,  by  a  statute  (constitution)  of 
the  Emperor  Diocletian,  the  ordinary  legal  jurisdiction  was 
abolished,  and  the  extraordinary  or  equitable  methods  became 
universal.  Here,  too,  the  parallel  continues.  By  a  statute  of  Par- 
liament, passed  in  1873,  and  which  goes  into  effect  on  the  1st  of 
November,  1875,  the  superior  courts  of  law  —  the  Queen's  Bench, 
the  Common  Bench  and  the  Exchequer,  and  the  Court  of  Chan- 
cery, and  the  Courts  of  Admiralty  and  of  Probate  and  Divorce, 
and  of  Bankruptcy  —  are  combined  into  one  grand  tribunal, 
to  be  called  the  Supreme  Court  ;  the  distinctions  between 
legal  and  equitable  procedure  are  removed ;  and  one  form  of 
action  is  to  be  used  in  the  administration  of  justice  between 
private  suitors,  and  in  granting  all  civil  remedies  which  may  be 
obtained  by  litigant  parties.^  This  great  change,  now  a])Out  to 
be  made  in  England,  had  been  effected  twenty-five  years  before 
in  New  York,  and  is  in  full  and  successful  operation  in  more  than 
half  the  commonwealths  of  this  country.  Whether  law  and 
equity,  whether  the  legal  and  "the  equitable  methods  and  reme- 
dies, can  be  comjjletel}'  united  and  consolidated  in  one  homoge- 
neous system,  similar  to  that  which  prevailed  in  Rome  during  the 

1  This    statute    was   originally  to   go  "Her  Majesty's  High  Court  of  Justice," 

into  eflect  on  the  2d  of  November,  1874,  has  general  original  jurisdiction,  together 

but    tiie    time    was    subsequently    post-  with  some  appellate  jurisdiction  from  in- 

poned  for  one  year.    The  court  as  a  whole  ferior  courts,  and  the  other,  styled  "  Her 

is  styled  "  The   Supreme  Court  of  Judi-  Majesty's  Court  of  Appeal,"  has  a  gen- 

cattire  in  England,"  and  consists  of  two  eral  appellate  jurisdiction, 
permanent  divisions  ;  one  of  which,  styled 


INTRODUCTORY   CHAPTER.  '  21 

later  empire,  may  be  doubted.  I  am  of  the  opinion  that  such  a 
result  cannot  be  reached  until  trial  by  jury  is  abandoned,  and  the 
magistrate  is  left  to  decide  both  the  law  and  the  facts  in  every 
civil  proceeding.  While  the  jury  trial  lasts,  there  are  difficulties 
in  the  way  of  an  absolute  unity  of  method  which  seem  to  be 
insuperable.  What  the  union  between  law  and  equity  effected 
by  the  American  codes  of  practice  actually  is,  what  consequences 
in  the  administration  of  justice  and  in  the  granting  of  civil  reme- 
dies this  union  must  necessarily  produce,  if  the  spirit  and  the 
letter  of  the  legislation  are  obeyed,  I  shall  show  in  a  subsequent 
portion  of  this  treatise.  As  the  necessity  for  a  separate  court  of 
chancery  arose  in  great  part  from  the  use  of  the  jury  trial  by  the 
common-law  courts,  it  hardly  seems  possible  that  this  necessity 
has  now  been  obviated,  or  that  the  equity  tribunals  and  methods 
can  be  absolutely  merged  in  those  of  the  common  law,  and  still 
less  that  the  common-law  tribunals  and  methods  can  be  so  merged 
in  those  of  equit}^  as  long  as  the  jury  trial  —  the  original  element 
of  distinction  —  continues  to  exist. 

§  24.  In  thus  describing  the  progress  of  our  law,  and  the 
methods  by  which  it  has  been  built  up,  created^  I  may  properly 
say,  through  the  exercise  of  the  judicial  legislative  function  of 
the  courts  operating  by  the  decision  of  individual  cases,  I  have 
explained  the  peculiar  external  form  as  well  as  the  internal 
nature  of  that  law  as  a  complete  system.  For  the  larger  part  of 
the  history  the  development  has  taken  on  the  form  of  extending, 
modifying,  enlarging,  improving,  and  adding  to  the  various  actions, 
their  comprehensiveness,  their  application  to  the  new  facts,  events, 
and  relations  constantly'  arising  in  the  movements  and  advance 
of  society  and  civilization.  During  that  period  it  was  impossible 
to  separate  the  fundamental  principles,  the  abstract  rules  which 
determine  ttiC  primary  rights  and  duties  of  individuals,  from  the 
more  arbitrary  and  technical  rules  which  relate  directly  to  the 
procedure  and  to  the  methods  and  processes  by  which  the  judicial 
remedies  were  granted  to  suitors.  This  statement  is  abundantly 
verified  l)y  an  examination  of  the  published  records  in  which  the 
acts  of  the  courts  have  been  preserved.  A  study  of  the  books  of 
reported  decisions,  publislied  prior  to  a  very  recent  time,  shows 
that  the  judges  seldom  attempted  to  view  the  law  as  a  body  of 
general  rules  based  upon  great  principles  of  right  and  justice,  or 
to  consider  it  apart  from  the  mere  external  modes  in  which  it  was 


22  CIVIL   REMEDIES. 

made  applicable  to  individual  cases.     Their  opinions  almost  uni- 
formly discussed  the  narrow  question,  whetlier  such  or  such  an 
action  was  proper  under  the   circumstances  before   them,  and 
■whether  the  steps  taken  in  it  had  been  regular,  and,  if  iri-egular, 
what  effect  was  produced  by  such  default  upon  the  claims  of  the 
litigant  parties.     Doubtless  more  general  and  fundameutal  ])rin- 
ciples  were  often  involved  in  these  apparently  technical  discus- 
sions ;  but  they  Avere  involved  in  a  very  suljtle    and   obscure 
manner,  so  deeply  involved   as  to  be  wery  difficult  of  apprehen- 
sion.    It  is  true  that  in  more  recent  times  there  has  been  a  great 
and  most  beueficial  change.     The  courts  of  equity  never  being 
so  much  restricted  by  external  and  rigid  forms,  their  notions  and 
methods  at  last  produced  a  marked  effect  upon  the  common-law 
judges  and  lawyers.     The  latter  tribunals  felt  the  influence,  and 
were  led  to  look  at  the  substance  behind  and  distinct  from  the 
forms.     In  the  second  place,  a  succession  of  learned  and  able 
commentators  and  text-writers  had  done  much  to  mould  separate 
and  iiiq)()rtant  portions  of  the  jurisprudence  into  a  logical,  scien- 
tific, and  homogeneous  form.     Finally,  the  stage  of  direct  legisla- 
tion had  commenced,  and  both  in  England  and  in  the  United  States, 
whole  departments  of  the  private  law  had  been  put  into  a  statu- 
tory shape,  and  some  progress  had  been  made  towards  an  exhaus- 
tive code.     In  fact,  the  private  law  of  England  and  of  the  United 
States  had  reached  a  period  of  its  development  analogous  to  that 
of  the  Roman  law  before  the  decline  of  the  empire  had  begun, 
after  the   creative  function  of  the  prsetors  had  virtually  ceased, 
and  while  the  writings  of  the  great  jurisconsults  and  the  consti- 
tutions of  the  emperors  were  the  principal  sources  of  the  law,  and 
were  transforming  it  from  the  fragmentary  shape  of  the  Edicts 
into  the  i)hilosophical  order  and  symmetry  exhibited  in  the  Insti- 
tutes of  Gains.     Notwithstanding  tliis   change  —  almost  revolu- 
tion—  which  had  commenced   within   the  last   fifty  years,   and 
which   had  probably  been  more   thorough  in  the  United  States 
than  in  England,  the  old  system  of  formal  actions  and  technical 
modes  of  procedure  still  exerted  a  very  decided  influence  through 
the  whole   body  of  the  law,  and  still  reigned  supreme  in   the 
department  of  remedies  and  remedial  rights. 


INTRODUCTORY   CHAPTER.  23 


SECTION    SECOND. 

EEMEDIES    AND    REMEDIAL    EIGHTS    PRIOR    TO    THE   MODERN 
REFORMS   IN   PROCEDURE. 

§  25.  The  division  into  legal  and  equitable  relief,  and  the 
common-law  forms  of  action,  presented  a  theoretical  and  a  prac- 
tical classification  of  remedies  and  remedial  rights,  whicii  was 
universally  accepted  as  not  only  pro23er,  but  as  the  only  one  possi- 
ble under  the  circumstances.  .Here  was  a  system  ready  made ; 
and,  no  matter  how  artificial  and  arbitrary  it  was,  no  other  could 
be  adopted  as  long  as  the  ancient  practice  prevailed.  We  there- 
fore find  that  all  the  English  and  American  treatises,  commenta- 
ries, and  digests,  so  far  as  they  treat  of  remedies,  have  followed 
the  order  which  the  common-law  system  of  actions  suggests, 
without  a  question  as  to  its  practical  efficiency,  whatever  might 
be  thought  of  its  theoretical  correctness.  In  fact,  this  classifi- 
cation was  practically  efficient ;'  that  is,  it  enabled  the  court  and 
the  bar  to  go  through  with  the  routine  of  business  without  much 
liability  to  mistake  growing  out  of  the  method  itself.  I  will 
illustrate  this  statement  by  a  familiar  example.  Whatever  may 
be  said  of  reform  in  the  law,  of  amending  it  so  that  it  may  be 
more  consistent,  logical,  and  scientific,  the  most  important  prac- 
tical duty  of  the  lawyer  is  to  procure  some  relief  for  clients 
whose  legal  rights  have  been  invaded.  In  this  country  at  least 
the  great  mass  of  men  go  on  with  their  affairs,  trusting  to  their 
own  knowledge  or  to  their  luck,  until  a  difficulty  is  actually 
encountered  ;  and  then  they  apply  to  a  lawyer.  His  first  and  in 
general  only  duty  in  such  case  is  to  ascertain  what  remedy  is 
furnished  by  the  law  applicable  to  the  facts  disclosed  to  him,  and 
to  obtain  that  remedy,  if  possible,  through  the  action  of  the 
courts.  In  determining  this  most  important,  practical  question, 
What  is  the  appropriate  remedy,  and  what  are  the  client's  reme- 
dial rights?  the  established  divisions  which  I  have  described  lie 
open  before  him  as  an  almost  unerring  guide.  He  can  easily 
decide  whether  the  case  falls  within  the  dej^artment  of  equita- 
ble or  within  that  of  legal  rights,  duties,  and  reliefs.  The  lines 
which  separate  these  two  grand  departments  are  so  well  defined 
that  in  the  vast  majority  of  instances  he  could  not  err  in  making 
his  choice,  except  through  the  grossest  ignorance  or  negligence. 


24  CIVIL   REMEDIES. 

If  (he  case  is  legal  rather  than  equitable,  the  lawyer  has  next 
to  determine  the  form  of  remedy  awarded  by  the  law  courts  to 
which  his  client  is  entitled.  Here,  a^ain,  the  field  is  so  carefully 
mapped  out,  the  divisions  are  so  plain,  that  his  task  is  compara- 
tively easy.  If  the  matter  in  controversy  is  the  ownership  of  a 
tract  of  land  or  of  a  specific  chattel,  and  the  object  of  the  liti- 
gation is  to  declare  such  ownership  and  to  recover  possession,  he 
knows  that  ejectment  in  the  one  case,  and  replevin  in  the  other, 
must  be  the  judicial  instrument  by  which  the  rights  are  to  be 
asserted.  If  the  relief  is  to  be  pecuniary,  the  question  presents 
itself,  and  can  be  answered  as  soon  as  asked,  —  answered  almost 
mechanically,  —  Is  the  cause  of  action  the  breach  of  a  contract, 
or  is  it  some  tort  to  person  or  property  ?  If  the  former,  the  dis- 
tinctions between  debt,  covenant,  and  assumpsit  are  patent,  and 
any  error  in  the  choice  is  virtually  impossible ;  indeed,  all  the 
lawyer  has  practically  to  do  is  to  ascertain  whether  the  contract 
is  sealed  or  unsealed,  for  every  case  of  simple  contract,  although 
it  creates  a  debt,  may  be,  and  naturally  would  be,  sued  in  as- 
sumpsit. If  the  cause  of  action  is  a  tort,  mere  ordinary  knowl- 
edge, a  very  moderate  acquaintance  with  the  modern  rules  of 
procedure  is  sufficient  to  determine  the  choice  between  tres- 
pass, case,  and  trover.  Although  in  former  times  the  difficulty 
of  distinguishing  between  trespass  and  case  was  often  very  great, 
although  the  special  rules  which  governed  their  use  were  techni- 
cal, even  absurdly  technical,  this  difficulty  had  long  ago  disap- 
peared, this  technicality  had  long  ago  been  removed.  It  sometimes 
happened  that  the  facts  presented  to  the  lawj-er  did  not  bring 
the  client's  case  within  any  of  these  ordinary  forms  of  procedure  ; 
neither  a  suit  in  equity  nor  any  common-law  action  could  afford 
the  relief  applicable  to  the  situation.  Even  in  such  an  excep- 
tional instance  the  common  law  provided  other  and  special  meth- 
ods, and  the  choice  between  them  was  comparatively  easy. 

§  26.  There  were  thus  many  and  great  practical  benefits  con- 
nected with,  and  arising  out  of,  the  system  of  procedure  which 
has  lasted  through  so  many  centuries.  Conceding  that  the  sys- 
tem, as  a  whole,  was  based  \\\ion  no  scientific,  logical,  or  true 
principles,  that  it  was  arl)itrary  and  artificial,  that  sometimes  it 
had  been  wedded  to  technicalit}'  in  such  a  degree  as  to  produce 
gross  injustice  to  suitors,  yet,  as  this  technical  habit  of  mind  had 
passed  away,  there  was  left  a  method  of  arranging,  classifying, 


INTRODUCTORY    CHAPTER.  25 

and  administering  remedies  and  remedial  rights  which  was  clear, 
definite,  certain,  and  easy  to  be  understood  and  to  be  worked 
out  in  actual  practice.  The  lawyer  knew  exactly  what  remedies 
the  courts  would  grant  in  a  given  case,  and  the  form,  manner, 
and  means  by  which  such  remedy  was  to  be  sought  and  obtained. 
'  There  was  an  order,  a  classification,  running  through  the  whole 
department  of  civil  remedies  which  could  be  acquired  by  an  exer- 
cise of  the  memory ;  and  although  the  reasons  upon  which  that 
classification  was  based  were,  like  much  of  so-called  legal  rea- 
soning, a  mere  formula  of  words,  without  any  real  meaning, 
yet,  when  the  artificial  premises  were  conceded,  the  results  could 
be  understood.  The  system,  however,  did  not  rest  upon  its  rea- 
soning so  much  as  upon  dogmatic  authority,  precedent,  and 
habitual  use. 

§  27.  While  an  order,  a  classification,  of  remedies  and  remedial 
rights  thus  existed,  perfect  of  its  kind,  practically  adapted  to  the 
administration  of  justice  in  the  manner  which  had  long  prevailed 
in  England  and  in  this  country,  this  order  and  classification  were 
founded  upon,  inseparably  united  with,  and  indeed  a  part  of,  tlie 
artificial  method  of  administering  justice  which  I  have  described, 
and  which  is  so  familiar  to  every  lawyer,  —  the  division  of  courts 
into  law  and  equity,  the  separation  of  the  entire  jurisprudence 
into  legal  and  equitable,  and  the  use  of  fixed  forms  of  action  and 
of  special  proceedings  for  the  obtaining  all  the  remedies  which 
the  common-law  tribunals  conferred  upon  suitors.  The  artificial 
peculiarities  of  the  remedial  department,  the  very  order,  arrange- 
ment, kinds,  and  classes  of  remedies,  and  of  means  for  their  attain- 
ment which  were  so  certain,  well  defined,  and  comprehensible, 
depended  upon  broader  and  deeper  peculiarities,  wlrich  lay  at  the 
bottom  and  pervaded  the  whole  superstructure  of  our  law.  A 
change  in  the  latter  renders  a  change  in  the  former  inevitable. 
When  a  fundamental  reform  has  been  accomplished,  when  the 
artificiality  and  arbitrariness  in  the  whole  body  of  the  law  have 
been  removed,  when  the  division- wall  between  law  and  equity  has 
been  broken  down,  when  all  the  separate  forms  of  legal  actions 
have  been  abolished,  the  raison  d'etre  of  the  existing  classification 
of  remedies  and  remedial  rights  also  disappears.  I  would  not  be 
misunderstood  in  this  statement.  The  remedies  themselves,  the 
final  reliefs  which  are  granted  to  litigant  parties  who  establish 
their  rights,  remain  unchanged ;  ownership  of  specific  tracts  of 


26  CIVIL   REMEDIES. 

land,  or  of  specific  chattels,  may  still  be  declared,  and  the  posses- 
sion thereof  recovered ;  pecuniary  compensation  may  still  be 
obtained  for  the  breach  of  contracts  and  for  wrongs  done  to  prop- 
erty, person,  and  character;  proceedings  may  be  reviewed  and 
reversed  as  by  certiorari  ;  acts  may  be  enforced  as  by  mandamus  ; 
the  vast  range  of  special  reliefs  conferred  by  the  Court  of  Chan- 
cery is  retained.  The  problem  is  to  classify,  arrange,  define,  and 
describe  these  remedies  so  that  the  particular  one  appropriate  to 
a  given  state  of  facts  may  be  seen  at  once  by  the  practising  law- 
3'er  and  by  tlie  judge.  Heretofore  this  classification,  arrange- 
ment, definition,  and  description  have  depended  entirely  upon  the 
peculiar  and  artificial  means  and  i^istruments  by  wliich  the  reme- 
dies themselves  could  be  obtained,  by  the  use  of  which  they  were 
sought  from  and  conferred  by  the  judicial  tribunals.  When  at 
one  blow  all  these  peculiar  and  artificial  means  and  instruments 
are  swept  away,  the  very  basis  of  the  classification  disappears,  and 
with  it  the  classification  itself.  To  retain  a  classification  founded 
upon  facts  which  no  longer  exist,  facts  which,  from  disuse,  are 
rapidly  passing  away  from  the  recollection  of  the  older  lawyers 
and  were  never  known  to  the  younger  members  of  the  bar  except 
as  the  result  of  curious  and  antiquarian  study,  is  worse  than  use- 
less ;  it  can  only  produce  confusion,  disorder,  and  uncertainty  in 
the  administration  of  justice.  When  the  legislature  has  attempted 
to  introduce  simplicity  into  the  mode  of  judicial  trials,  so  that  the 
ultimate  primary  rights  and  duties  of  the  litigant  parties  ma}'  be 
j)resented  for  investigation  and  decision  unconnected  with,  and 
untramelled  by,  any  collateral  difficulties  growing  out  of  questions 
as  to  the  proper  form  of  the  mere  means  and  instruments  wliicli 
the  party  has-chosen  by  which  to  present  his  claim  to  the  judges, 
a  retention  by  lawyers  and  judges  in  any  manner  and  for  -dwy  pur- 
pose of  these  old  means  and  instruments,  and  of  the  arbitiary 
distinctions  between  them,  and  of  the  arbitrary  rules  controlling 
them,  must  interfere  in  some  measure  with  the  intent  of' the  leg- 
islature, and  may  utterly  defeat  the  beneficial  purpose  which  it 
had  in  view.  I  shall  have  occasion  to  return  to  the  sul)ject,  and 
shall  point  out  in  detail  the  evil  effects  of  combining  the  old  forms 
and  modes  of  thouglit  with  the  new  system  which  the  reforma- 
tory legislation  has  introduced. 


INTRODUCTORY   CHAPTER.  27 


SECTION    THIRD. 

REMEDIES  AND  REMEDIAL  RIGHTS  UNDER  THE  REFORMED  AMER- 
ICAN SYSTEM  OF  PROCEDURE. 

I.    The  Reformatory  Legislation. 

§  28.  In  the  year  1848  the  Legislature  of  New  York  adopted  the 
Code  of  Procedure.  The  fundamental  principles  of  this  code, 
so  far  as  it  is  now  necessary  to  notice  them  witliout  going  into 
detail,  are  the  following :  (1)  The  abolition  of  the  distinction 
between  suits  in  equity  and  actions  at  law,  and.  the  distinctions 
between  legal  and.  equitable  procedure,  so  far  as  such  an  amalga- 
mation or  consolidation  is  possible  with  the  judicial  institutions 
which  have  been  retained  ;  (2)  The  abolition  of  all  common- 
law  forms  of  action,  and  the  establishment  of  one  ordinary,  uni- 
versal means  by  which  rights  are  maintained  and  duties  enforced 
in  a  judicial  controvers}',  called  a  "  civil  action  ;  "  (3)  The  appli- 
cation to  this  "  civil  action  "  of  the  familiar  equital)le  rather  than 
legal  rules,  methods,  and  principles,  so  far  as  practicable,  and 
especially  in  reference  to  the  parties,  the  pleadings,  and  to  the 
form  and  character  of  the  judgment.  It  is  evident,  from  the  most 
cursory  examination  of  this  code,  that  its  authors,  and  jjresum- 
ably  the  legislature,  intended  that  the  various  provisions  which 
they  introduced  in  reference  to  the  parties  to  an  action,  to  the 
pleadings  therein,  and  to  the  judgment  which  might  be  rendered, 
and  which  were  a  concise  statement  of  the  well-settled  doctrine 
of  equity  relating  to  these  subjects,  should  apply  fully  and  freely 
to  all  actions  which  might  thereafter  be  brought,  and  should  not 
be  confined  to  actions  that,  under  the  former  practice,  would 
have  been  equitable.  Whether  the  courts  have  at  all  times 
recognized  and  carried  out  this  plain  intention  of  the  statute 
may  well  be  doubted.  I  have  been  careful,  in  the  above  state- 
ment as  to  the  union  of  law  and  equity.  The  language  of  the 
code  is  as  follows  :  "  The  distinctions  between  actions  at  law  and 
suits  in  equity,  and  the  forms  of  all  such  actions  and  suits  here- 
tofore existing,  are  abolished ;  and  there  shall  be  in  this  State 
hereafter  but  one  form  of  action  for  the  enforcement  or  protec- 
tion of  private  rights  and  the  redress  of  private  wrongs,  Avliich 


28  CIVIL  REMEDIES. 

shall  be  denominated  a  civil  action."  '  A  subsequent  provision,^ 
based  upon  the  clause  in  the  State  constitution  which  })i'eserves 
the  jury  trial  "  in  all  cases  in  which  it  has  heretofore  been  used,"  ^ 
recognizes  the  fact  that  the  inry  trial  must  still  l)e  retained  in  all 
actions  which  were  before  denominated  legal,  with  the  unim[)or- 
tant  exception  which  formerly  existed,  —  namely,  where  the  trial 
will  require  the  examination  of  a  long  account,  —  and  thus,  in 
express  terms,  prevents  an  absolute  identity  in  the  judicial  pro- 
ceedings which  result  in  remedies  that  would  have  been  legal  and 
in  those  which  result  in  remedies  that  would  have  been  equitable. 
As  I  have  already  said,  the  perpetuation  of  the  very  fundamental 
element  of  difference  between  the  trial  at  law  and  the  trial  in 
equity  —  and  the  perpetuation  cannot  be  avoided  as  long  as  the 
constitution  remains  unchanged  in  tliis  respect  —  prevents  a  com- 
plete removal  of  the  differences  between  legal  and  equitable 
procedure  and  the  absolute  union  of  law  and  equity  into  one 
homogeneous  system.  How  far  the  differences  between  the  final 
remedies  which  courts  of  law  granted  exclusively,  —  namely,  the 
recovery  of  a  specific  tract  of  land  or  of  a  specific  chattel,  and 
the  recovery  of  money  in  the  form  of  pecuniary  compensation, — 
and  the  infinite  variety  of  special  remedies  which  courts  of  equity 
were  accustomed  to  grant,  may  in  themselves  prevent  such  a  per- 
fect union,  I  shall  discuss  and  attempt  to  determine  in  a  subse- 
quent chapter. 

§  29.  The  New  York  Code,  in  respect  to  the  fundamental  prin- 
ciples and  provisions  which  I  have  stated,  has  been  adopted  in 
twenty-two  other  States  and  territories  of  this  country, —in  the 
States  of  Ohio,  Indiana,  Wisconsin,  Iowa,  Minnesota,  Kentucky, 
Missouri,  Kansas,  Nebraska,  Nevada,  Oregon,  California,  North 
Carolina,  South  Carolina,  Florida,  Alabama,  and  in  the  teriitories 
of  Washington,  Montana,  Idaho,  Dacota,  Wyoming,  Arizona.  I 
need  not  now  compare  these  different  State  and  territorial  codes 
in  their  details ;  it  is  enough  for  my  present  purpose  to  say  that 
they  all  embody  the  same  three  fundamental  principles.  It  is  true 
that  in  Kentucky,  in  Iowa,  and  in  Oregon,  the  abolition  of  the 
distinction  between  legal  and  equitable  actions  is  not  nominally  ^o 
absolute  as  in  New  York,  and  the  other  States  and  territories 
named  in  the  foregoing  list.     The  following  are  the  provisions  of 

1  N.  Y.  Code  of  Proced.  §  69.        2  jbij.  §  253.        '  Const,  of  X.  Y.  Art.  I.  §  2. 


INTRODUCTORY  CHAPTER.  29 

the  Iowa  statute :  "  All  forms  of  action  are  abolished  in  this 
State ;  but  the  proceedings  in  a  civil  action  may  be  of  two  kinds, 
ordinary  or  equitable."  "  The  plaintiff  may  prosecute  his  action  by 
equitable  proceedings  in  all  cases  where  courts  of  equity,  before  the 
adoption  of  this  code,  had  jurisdiction,  and  muat  so  proceed  in  all 
cases  where  such  jurisdiction  was  exclusive."  "  In  all  other  cases, 
except  in  this  code  otherwise  provided,  the  plaintiff  must  prosecute 
his  action  by  ordinary  proceedings."  "An  error  of  the  plaintiff, 
as  to  the  kind  of  proceedings  adopted,  shall  not  cause  tlie  abate- 
ment or  dismissal  of  the  action,  but  merely  a  change  into  the 
proper  proceedings  and  a  transfer  of  the  action  to  the  proper 
docket."  "  The  provisions  of  this  code  concerning  the  prosecu- 
tion of  a  civil  action  apply  to  both  kinds  of  proceeding,  whether 
ordinary  or  equitable,  unless  the  contrary  appears."  ^  The  cor- 
responding clauses  of  the  Kentucky  Code  of  Practice  are  identi- 
cal in  language  with  those  found  in  the  Iowa  statute.^  It  is  plain 
from  these  citations  that  the  difference  between  the  New  York  sys- 
tem and  that  of  Kentucky,  Iowa,  and  Oregon  is  nominal  merely  ; 
in  fact,  the  latter  simply  expresses  in  words  what  the  former  nec- 
essarily implies.  A  plaintiff  in  Kentucky,  Iowa,  or  Oregon,  at  the 
commencement  of  his  first  pleading  —  complaint  or  petition  — 
names  the  proceedings,  ordinary  or  equitable,  as  the  case  may  be, 
and  exactly  the  same  rules  of  pleading,  of  parties,  and  of  judg- 
ment apply  to  the  action  in  either  case  ;  there  is  no  difference  of 
form  or  method.  If  it  is  an  ordinary  proceeding,  it  is  tried  before 
a  court  and  jury ;  if  equitable,  before  a  court  consisting  of  the 
same  judge,  but  without  a  jury  ;  and  the  only  result  of  a  mistake 
in  properl}^  entitling  the  proceeding  is  to  transfer  it  from  one 
court  calendar  or  docket  to  the  other. 

§  30.  The  reformatory  legislation  first  introduced  by  New  York 
in  1848,  has  up  to  this  time  been  adopted  in  nearly  one-half  of 
the  States  and  in  six  of  tlie  territories.  It  may  well  be  regarded, 
and  I  shall  treat  it,  as  the  American  system.  AVhile  changes  may 
be  made  in  its  details,  while  minor  variations  do  exist  in  some 
of  the  States,  it  is  simply  impossible  that  any  of  the  broad  prin- 
ciples upon  which  it  is  founded  will  ever  be  abandoned  ;  so  far 
as  the  subsequent  legislation  in  other  States  differs  from    that 

1  Code  of  Iowa,  Eevision  of  1873,  §§  1859,  §§  1,  3,  4,  5,  13.  Tlie  same  is  sub- 
2507,  2508,  2513,  2514,  2520.  stantially  true  of  the  Oregon  Code. 

-  Kentucky   Code  of    Practice,   ed.   of 


30  CIVIL   REMEDIES. 

orioinally  enacted  in  New  Yoik,  it  carries  out  these  universal 
principles  to  their  logical  results  with  greater  freedom.  Addi- 
tional States  will  surely  aece[)t  this  American  system,  and  it 
■will  prohahly  become  universal  throughout  the  country.  The 
act  ot"  the  British  Parliament,  already  referred  to,  is  based  upon 
the  same  general  principles.  Although  the  practice  authorized 
by  that  statute  will  be  very  different  in  many  respects  from  the 
American  mode  of  procedure,  yet  it  will  involve  an  abolition  of 
the  common-law  actions,  and  a  consolidation  of  law  and  ecjuity 
not  only  as  respects  the  trilnnials,  but  as  respects  the  judicial 
means  and  instruments  by  which  remedies  are  to  be  obtained. 

II.    The  General  Nature  of  the  Civil  Action. 

§  31.  Since  the  original  inauguration  of  the  American  system 
in  1848,  no  attempt  has  been  made  to  rearrange  and  reclassify 
remedies  and  remedial  rights  in  accordance  with  the  new  order 
of  things.  The  profession  and  the  courts  have  been  left  to  work 
their  way  in  the  dark  ;  and  the  consequence  has  been  an  utter 
confusion  and  uncertainty,  which  have  gone  far  to  defeat  the 
beneficial  purposes  of  the  reform,  and  to  create  a  conviction  in 
the  minds  of  many  very  able  lawyers  and  judges  that  the  change 
was  a  positive  evil.  Although  the  statute  is  most  peremptory 
in  its  terms,  going  to  the  very  root  and  overturning  the  growth 
of  ages,  yet  in  the  actual  administration  of  justice  it  often  seems 
to  V>e  foi'gotten  that  a  new  era  has  commenced  ;  it  often  seems  to 
be  assumed  that  the  sharply  defined  separation  of  legal  and  equi- 
table methods  and  the  various  common-law  forms  of  action  still 
remain  in  all  their  arbitrary  requirements.  This  confusion  partly 
results  from  the  fact  that  the  practising  lawyer  has  no  hand-book 
adapted  to  the  present  system  analogous  to  the  familiar  treatises 
upon  actions,  parties,  and  pleadings,  which  were  his  ready  and 
safe  guides  under  the  former  dispensation  ;  and  partly  from  the 
dogged  unwillingness  shown  in  some  quarters  to  accept  and  con- 
form to  the  new  order  of  things.  I  have  already  shown  that  the 
modes  of  classifying  remedies  and  remedial  rights,  and  the  whole 
practical  treatment  of  this  dejiartment  of  the  law,  based  u[)on 
the  artificial  foundation  which  has  been  swept  away,  are  wholly 
inapplicable  to  the  modern  procedure,  and  I  need  not  return  to 
the  discussion  of  that  particular  point.  The  truth  of  the  state- 
ment is  evident  without  further  argument. 


INTRODUCTORY   CHAPTER.  31 

§  32.  The  fundamental  conceptions  embodied  in  the  American 
S3^stem  are  natural  and  true.  They  are  in  perfect  accord  with 
the  experience  of  mankind  as  shown  in  the  history  of  legal  devel- 
ojiment  from  an  infancy  of  rude  barbarism  to  a  maturity  of 
enlightened  civilization.  The  whole  course  of  such  development 
consists  in  discarding  rules,  modes,  and  institutions,  which  were 
arl)itrary  and  formal,  and  in  bringing  the  law  into  an  agreement 
with  al)stract  justice  and  pure  morality.  We  have  now  reached 
the  stage  Avhen,  by  an  act  of  legislation,  our  judicial  proceedings 
have  in  theory  at  least  been  made  simple,  when  natural  methods 
have  taken  the  place  of  the  artificial,  when  the  sole  object  of  a 
forensic  trial  is  to  arrive  directly  at  the  truth,  and  when  the 
search  after  the  truth  is  not  confined  to  any  prescribed  forms  nor 
shut  np  between  any  rigid  barriers.  The  theory  is  perfect ;  but 
the  complete  results  anticipated  from  it  in  practice  will  not  be 
reached  unless  the  whole  department  of  remedies  and  remedial 
rights  shall  be  rearranged  and  reconstructed  so  as  to  be  in  har- 
mony  Avith  the  grand  ideas  embodied  in  the  theory.  Is  such  a 
reconstruction  possible  ?  We  have  seen  that  the  system  lately  in 
use  was  based  upon  arbitrary  external  facts,  —  facts  which  had  no 
necessary  a  priori  existence.  The  ancient  law,  in  dealing  with 
the  department  of  remedies,  in  determining  the  extent  of  reme- 
dial rights,  and  in  prescribing  the  means  by  which  such  rights 
should  be  enforced,  generally  ignored  all  the  distinctions  which 
exist  in  the  very  nature  of  things,  and  seized  hold  of  collateral 
incidents  which  had  no  possible  connection  with  the  essential 
substance  of  the  right  to  be  maintained  or  of  the  relief  to  be 
gr.mted.  A  single  illustration  will  suifice.  If  the  stipulations  of 
a  written  agreement  have  been  broken,  the  presence  or  absence  of 
a  morsel  of  wax  or  a  wafer  fastened  upon  the  paper,  and  called  a 
seal,  determined  which  one  of  two  distinct  actions  was  the  proper 
means  of  recovering  compensation  in  the  form  of  damages. 
Throughout  the  entire  common-law  modes  we  find  this  neglect 
of  essential  attributes  and  this  reliance  upon  outside,  immaterial, 
incidental  features,  which  caused  the  English  jurisprudence  to 
appear  arbitrary  and  even  grotesque  when  compared  with  that 
of  the  enlightened  states  of  continental  Europe. 

§  33.,  All  this  must  evidently  be  abandoned,  if  the  spirit  of  the 
reformed  procedure  is  to  be  carried  out,  and  its  object  is  to  be 
attained.     The  remedies  which  the  law  provides  for  all  violations 


32  CIVIL   REMEDIES. 

of  primaiy  duties  and  tlie  rights  to  the  same,  must  be  arranged, 
classified,  and  described  according  to  some  qualities  that  inhere 
in  their  very  nature ;.  and  to  accomplish  such  a  result  is  the  ulti- 
mate design  of  the  author  in  preparing  this  treatise.  As  a  pre- 
liminary, however,  to  the  final  work  of  describing,  arranging,  and 
classifying  the  remedies  themselves,  it  is  important  and  indeed 
indispensable  that  the  principles  of  the  single  judicial  instrument 
for  the  prosecution  of  all  remedial  rights  and  the  obtaining  of  all 
remedies,  should  be  ascertained  and  stated.  The  Civil  Action  is 
therefore  the  special  subject  of  the  present  volume. 

§  34.  The  single  civil  action  fur  the  protection  of  all  primary 
rights  and  the  enforcement  of  all  primary  duties  is  the  central 
element  of  the  new  procedure.  All  distinctions  between  actions 
at  law  and  suits  in  equity  and  between  the  different  forms  of 
common-law  actions  having  been  swept  away,  the  suit  in  equity 
and  the  common-law  actions  themselves  as  distinctive  judicial 
instruments  have  been  abrogated,  and  in  their  stead  has  been 
substituted  the  one  civil  action.  In  its  essential  features  and 
fundamental  principles  there  is  an  absolute  unanimity  among  all 
the  codes ;  even  the  divergence  from  the  common  type  already 
mentioned  in  those  of  three  States  is  only  nominal  and  apparent. 
There  is,  it  is  true,  a  certain  amount  of  difference  in  the  matters 
of  detail  connected  with  the  prosecution  of  the  action,  in  the 
incidental  steps  taken  and  acts  done  by  the  litigant  parties  from 
the  first  issue  of  process  to  the  final  enforcement  of  judgment  by 
execution  ;  but  with  all  these  vaiiations  in  the  mere  piactice,  the 
action  is  everywhere  the  same  in  its  essential  conception  and  in 
all  its  organic  elements.  If  we  disregard,  therefore,  the  external, 
and  so  to  speak  accidental  details,  the  reformed  American  pro- 
cedure, in  its  statutory  creation,  in  its  legislative  intention,  is  a 
unit,  a  single,  harmonious,  identical  system.  It  is  possible  for 
this  pui'pose  to  be  carried  into  effect,  and  for  the  procedure  to  be 
made  in  its  actual  administration  what  it  was  designed  to  be  by 
its  authors.  In  every  State  there  already  exists  a  body  of  judicial 
decisions  giving  a  construction  to  those  fundamental  portions  of 
the  local  code  which  directly  relate  to  the  civil  action  ;  and  these 
decisions  are  based  upon  a  statutory  text  which  is  everywhere 
the  same  in  import,  if  not  absolutely  identical  in  language.  By 
comparing,  contrasting,  and  combining  the  interpretations  thus 
given  by  the  various  tribunals,  their  agreements  and  discrepancies 


INTRODUCTORY   CHAPTER.  33 

can  be  ascertained,  and  a  single  havmonions  result  can  be  evolved, 
by  which  the  ultimate  objects  of  the  reform  itself  shall  be  accom- 
plished. I  shall  attempt  to  perform  the  Avork  thus  briefly  in- 
dicated. I  purpose  to  describe  the  civil  action  of  the  reformed 
American  procedure  ;  to  discuss  its  fundamental  principles ;  and 
to  present  it  in  all  its  essential  features,  as  the  single  judicial 
instrument  for  the  maintaining  of  all  remedial  rights  and  the 
obtaining  of  all  remedies.  In  carrying  out  this  design,  I  shall 
not  deal  with  matters  that  are  purely  of  practice  ;  my  purpose  is 
to  ascertain  and  state  what  the  civil  action  is,  and  not  how  it  is 
commenced,  prosecuted,  or  ended. 

§  35.  At  the  very  outset  of  the  undertaking  it  is  necessary  to 
determine  with  accuracy  what  are  these  essential  principles  and 
features  which  constitute  the  civil  action,  and  which  thus  form 
the  central  element  of  the  entire  reformed  procedure.  First  in 
importance,  underlying  the  whole  system,  and  from  which  all 
others  flow  as  natural  consequences,  is  the  abolition  of  the  dis- 
tinction between  actions  at  law  and  suits  in  equity.  The  new 
procedure  is  built  upon  this  fact'  as  its  very  corner-stone  ;  every 
other  characteristic  feature  of  the  civil  action  results  from  it  as  a 
necessary  corollary.  The  interpretation  given  to  this  one  legis- 
lative enactment  by  the  courts  of  any  State  must  determine  the 
nature  of  the  system  which  is  created  therein,  whether  it  shall 
comply  with  or  disregard  the  intent  of  the  law-makers,  whether 
it  shall  accomplish  or  defeat  the  objects  of  the  reform.  The  first 
and  most  important  step,  therefore,  in  treating  of  the  civil  action, 
involves  an  exhaustive  discussion  of  this  principle.  Its  extent 
and  limits  must  be  established,  and  its  full* force  and  effect  ascer- 
tained. Before  any  consistent  theory  of  the  civil  action  can  be 
developed  in  even  a  single  State,  a  principle  of  interpretation 
must  be  agreed  upon  and  settled  by  the  courts,  so  general  and 
comprehensive  that  it  can  be  applied  to  all  the  varying  relations 
and  phases  of  the  action,  and  can  be  invoked  with  certainty  and 
success  in  determining  all  the  subordinate  questions,  and  remov- 
ing all  the  minor  difliculties,  which  shall  arise  in  constructing  the 
body  of  practical  rules  that  constitute  the  entire  procedure  ;  and 
this  principle,,  when  thus  established  in  a  general  form,  must  be 
steadily  adhered  to  by  the  judges  without  exception  or  deviation. 
The  courts  have,  however,  fallen  far  short  of  this  ideal ;  and,  to 
the  casual  observer  at  least,  the  product  of  their  judicial  labors 

3 


84  CIVIL   REMEDIES. 

in  respect  to  this  particular  subject-matter,  seems  to  be  a  mass  of 
uncertainty,  confusion,  and  contradiction,  although  upon  a  closer 
examination  it  will  be  found  that  some  substantial  work  has  been 
done,  some  solid  foundation  of  principle  has  been  laid.  The 
causes  of  this  confusion  are  twofold.  The  first  of  them  is  in- 
timately connected  with  the  constitution  of  the  courts  themselves. 
From  the  inauguration  of  the  reform  there  have  existed  two  schools 
of  judges,  the  one  favoring  a  broad  and  liberal  interpretation  of 
the  statute,  a  construction  in  accordance  with  the  spirit  of  the 
legislation,  and  tending  to  fulfil  its  evident  purj)ose  as  a  measure 
in  the  highest  degree  remedial ;  the  other  favoring  a  narrow  and 
technical  interpretation,  which  should  restrict  the  operation  of  the 
statute  to  its  mere  letter,  and  which  should  construe  its  language 
in  such  a  manner  as  to  produce  the  least  possible  change  from  the 
ancient  common  law  and  equity  methods  of  procedure.  Although 
the  latter  school  has  at  no  time  controlled  the  highest  courts  of  more 
than  one  or  two  States,  and  although  it  is  rapidly  disaj^pearhig  even 
from  them,  and  has  in  form  quite  disappeared  from  all  the  others, 
yet  the  effect  of  its  theories  and  methods  may  be  perceived  with 
more  or  less  clearness  throughout  the  whole  course  of  judicial 
interpretation  wherever  the  reformed  procedure  has  been  adopted. 
The  second  cause  of  the  uncertainty  and  confusion  above  men- 
tioned is  the  occasional  want  of  consistency  among  the  judges  of 
the  liberal  school,  and  their  failure  in  particular  cases  to  main- 
tain and  enforce  the  principle  of  interpretation  which  they  had 
approved  and  adopted  in  a  general  form  ;  and  this  is  the  cause 
which  has  been  most  efficient  in  preventing  the  growth  of  a  pro- 
cedure consistent  in  all'  its  parts,  and  carrying  out  in  all  its  details 
the  full  purpose  of  the  reform.  Although  from  the  operation  of 
these  two  causes  there  is  in  the  work  of  the  courts,  taken  as  a 
whole,  much  confusion  and  not  a  little  direct  conflict,  still  there 
exists  the  material  from  which  a  complete,  systematic,  and  con- 
sistent theory  of  the  civil  action  may  be  constructed.  The  an- 
tagonistic element  introduced  by  the  school  of  judges  who  were 
openly  hostile  to  the  new  procedure  was  chiefly  confined  to  the 
earlier  years  of  the  reform ;  and  the  decisions  rendered  under  the 
influence  of  their  opinions  have  been  to  a  great  extent  overruled 
or  displaced  by  later  judgments,  which  more  nearly  express  the 
intent  of  the  legislature.  The  inconsistencies  between  the  princi- 
ples of  interpretation  announced  in  a  general  and  comprehensive 


INTRODUCTORY    CHAPTER.  35 

manner,  and  the  practical  application  thereof  to  the  special  in- 
stances and  subordinate  details  of  the  civil  action,  are  also  grad- 
ually disappearing  ;  the  traditions  of  the  past,  and  the  ancient 
doctrines  and  methods  of  the  common  law,  are  passing  away  from 
the  memory  of  the  bench  and  bar,  and  a  closer  conformity  with 
the  fundamental  conceptions  of  the  reform  legislation  is  plainly  to 
be  seen  in  all  the  States.  While,  therefore,  among  the  decisions 
which  have  been  pronounced  since  the  inauguration  of  the 
American  procedure  in  New  York  in  1848,  there  are  many,  even 
of  the  highest  courts,  which  must  be  rejected  as  utterly  wrong, 
and  as  opposed  to  the  very  letter  of  the  codes,  and  very  many 
others  which  must  be  taken  with  extensive  and  important  limita- 
tions ;  yet  from  the  materials  thus  furnished  by  the  tribunals  of 
the  several  States,  from  a  combination  and  comparison  of  their 
results,  the  true  doctrines  and  correct  rules  relating  to  the  civil 
action  may  be  ascertained,  collected,  and  arranged  in  such  a 
manner  as  to  present  a  complete  system,  —  a  system  that  shall 
represent  the  spirit  and  design  of  the  reform  legislation,  and  that 
shall  at  the  same  time  be  founded,  not  upon  any  mere  speculations 
of  the  author,  but  upon  the  solid  and  sure  basis  of  actual  judicial 
authority  and  precedent. 

§  36.  As  the  abolition  of  the  distinctions  between  actions  at 
law  and  suits  in  equity  is  a  fact  so  broad  in  its  nature  that  within 
it  are  included  all  the  other  essential  features  of  the  civil  action, 
its  full  significance  must  be  accurately  determined,  if  possible,  at 
the  very  commencement  of  our  contemplated  work.  I  have 
shown  in  a  preceding  paragraph  that,  at  a  stage  in  the  historical 
development  of  the  Roman  law,  the  "  ordinary  "  jurisdiction  of 
the  magistrates  was  abolished,  and  all  forms  and  species  of  judi- 
cial controversies  were  combined  in  the  "extraordinary  "  jurisdic- 
tion. The  result  of  this  change  was  a  complete  amalgamation 
and  unification  of  law  and  equity,  so  that  the  Roman  civil  law, 
as  it  is  embodied  in  the  Codes  of  Justinian,  presents  no  trace  of 
the  dual  nature  which  characterizes  our  own  and  the  English 
jurisprudence,  and  which  did  at  one  time  characterize  that  of 
Rome.  The  codes  of  procedure  do  not  attempt  to  effect  so  radi- 
cal and  sweeping  an  alteration  ;  the  distinctions  between  laAv  and 
equity  are  not  abolished ;  these  two  departments  of  the  munici- 
pal law,  comprising  their  distinctive  and  peculiar  primary  rights 
and  duties,  and  furnishing  their  special  remedies,  are  left  un- 


36  CIVIL   REMEDIES. 

touclied  by  the  legislation,  and  it  is  plain  that  they  cannot  be 
consolidated  into  one  so  long  as  the  jury  trial  is  preserved  and 
made"  compulsory.  While  the  change  does  not  extend  to  the 
groups  of  rights  and  duties  themselves  which  are  collectively 
called  "  law  "  and  "  equity,"  nor  to  the  remedies  which  have 
been  used  in  maintaining  such  rights  and  duties,  but  is  entirely 
confined  to  the  judicial  instrument  by  means  of  which  the  reme- 
dies are  sought  after  and  obtained,  in  its  operation  and  effect 
upon  that  instrument  it  is  comjjlete.  All  distinctions  between  the 
action  formerly  used  to  enforce  equitable  rights  and  obtain  equi- 
table remedies  and  those  formerly  used  to  enforce  legal  rights  and 
obtain  legal  remedies  are  removed;  and  one  judicial  proceeding, 
with  the  same  essential  principles  and  features,  is  to  be  used  in 
enforcing  all  species  of  rights  and  obtaining  all  kinds  of  remedies. 
The  revolution  thus  made  in  the  ancient  modes  of  jirocedure  was 
radical  and  thorough ;  it  was  startling  and,  in  fact,  shocking  to 
lawyers  who  were  familiar  only  with  the  notions  and  methods  of 
the  common  law.  Irrespective  of  its  remote  effects  upon  parties, 
pleadings,  and  judgments,  the  immediate  and  direct  consequences 
of  the  change  involve  the  combination  of  legal  and  equitable 
causes  or  rights  of  action,  legal  and  equitable  defences,  and  legal 
and  equitable  reliefs  in  one  single  suit.  If,  therefore,  this  funda- 
mental principle  introduced  by  the  codes  be  honestly  followed 
to  its  logical  results,  if  its  spirit  be  faithfully  accepted  as  the  true 
and  only  guide  in  the  work  of  constructing  a  system  of  practical 
rules  for  the  bench  and  the  bar,  there  should  be  no  such  distinc- 
tive names  used  in  legal  terminology  as  ."  legal  action "  and 
"  equitable  action,"  certainly  no  "  action  at  law  "  or  "  suit  in 
equity,"  since  with  strict  accuracy  of  expression  no  action  can  be 
considered  in  itself  as  either  legal  or  equitable  ;  but,  to  avoid  an 
inconvenient  circumlocution,  these  descriptive  names  will  doubt- 
less be  retained.  Among  the  topics  embraced  in  the  discussion 
of  the  general  principle  are  the  union  of  legal  and  equitable  pri- 
mary rights  or  causes  of  action  in  the  same  controversy,  the 
union  of  legal  and  equitable  reliefs  or  remedies,  the  granting  an 
equitable  in  place  of  a  legal  relief  or  a  legal  in  place  of  an  equi- 
table one,  the  interposition  of  an  equitable  defence  to  a  legal 
cause  of  action,  and  the  obtaining  a  legal  remedy  upon  an  equi- 
table primar}^  right  or  estate.  All  of  these  sjjecial  features  are 
included  within  the  broad  jninciple  which  the  reformed  procedure 


INTRODUCTORY   CHAPTER.  37 

adopts  as  its  very  foundation  ;  and  in  developing  a  complete  theory 
of  tiie  civil  action  they  must  be  exhaustively  discussed,  with  all 
the  aid  which  can  be  obtained  from  judicial  decisions.  When 
the  fact  is  fully  apprehended  that  the  distinctions  between  actions 
at  law  and  suits  in  equity  are  abolished,  and  that  there  is  but  one 
civil  action  for  the  maintenance  of  all  rights  and  the  pursuit  of 
all  remedies,  and  when  the  subordinate  elements  directly  con- 
nected with  and  resulting  from  this  fact  are  clearly  perceived,  all 
real  difficulties  at  once  disappear ;  the  entire  system  of  doctrines 
and  rules  concerning  the  nature  of  the  civil  action,  and  its  use  as 
an  instrument  for  remedial  j)urposes,  is  seen  to  result  as  a  natural 
and  necessary  consequence  from  this  one  source,  and  to  be  scien- 
tifically perfect  as  well  as  practically  efficient  in  its  completeness 
and  unity. 

§  37.  Immediately  connected  with  the  abolition  of  all  distinc- 
tion between  legal  and  equitable  actions  is  the  abrogation  of  the 
common-law  forms  of  action.  A  single  civil  action  sufficient  for 
all  purposes  requires  both  of  these  modifications.  No  real  diffi- 
culty can  arise  in  giving  effect  to  this  particular  provision  of  the 
codes.  The  common-law  divisions  of  actions  were,  to  a  very 
great  extent,  arbitrary  and  formal ;  they  could  easily  have  been 
abandoned  while  the  more  substantial  line  of  separation  between 
the  action  at  law  and  the  suit  in  equity  was  preserved.  While 
the  courts  have  never  hesitated  nor  suggested  a  doubt  in  the 
enforcement  of  this  special  legislative  enactment,  its  full  meaning 
has  sometimes  been  misapprehended.  Individual  judges  have 
declared  that  all  the  ancient  legal  actions  still  exist  in  their  sub- 
stance, with  simply  the  loss  of  their  names.  This  is,  of  course,  a 
palpable  error ;  for  all  the  marks  which  distinguished  one  action 
from  another — for  example,  "covenant"  from  "debt"  or  "as- 
sumpsit," or  "  trespass  "  from  "  case  "  or  "  trover  " —  were  external, 
technical,  and  formal,  and  have  been  swept  away.  The  rights  of 
action  remain,  and  the  remedies  which  could  be  recovered  by  the 
use  of  any  particular  action  may  still  be  secured  by  means  of  the 
civil  action  which  the  codes  have  substituted  in  the  place  of  all  the 
previous  forms  ;  when  under  given  circumstances  an  injured  party 
might,  by  resorting  to  some  one  of  the  various  actions  at  law, 
have  obtained  a  judgment  for  land,  or  chattels,  or  money,  he  can, 
Tinder  exactly  the  same  circumstances,  recover  a  like  judgment 
by  the  means  which  the  reformed  procedure  furnishes  to  him. 


38  CIVIL   REMEDIES. 

To  this  extent,  and  no  further,  whatever  was  substantial  in  the  old 
forms  of  action  has  been  preserved.  If  the  letter  and  the  spirit 
of  the  codes  are  obeyed,  all  the  rules  of  procedure  which  were 
based  solel}^  upon  the  technical  and  arbitrary  differences  of  form 
among  the  ancient  common-law  actions  must  be  regarded  as  abro- 
gated with  the  actions  themselves. 

§  38.  The  other  essential  elements  or  features  which  belong  to 
the  civil  action,  and  inhere  in  its  nature,  Avhich  determine  what 
it  substantially  is,  rather  than  indicate  how  it  must  be  prosecuted 
through  the  courts,  are  the  parties,  the  mode  of  presenting  the 
affirmative  subject-matter,  or  cause  of  action,  by  the  plaintiff, 
the  mode  of  presenting  the  defensive  subject-matter  by  the 
defendant,  and  the  nature  and  form  of  the  judgment.  The  doc- 
trine of  parties  is  of  great  practical  importance  ;  and  it  is  the  one 
concerning  which  there  has  been  by  far  the  most  confusion, 
uncertainty,  and  contradiction  among  the  decided  cases.  The 
common-law  and  the  equity  theories  of  parties  stood  opposed  to 
each  other  in  sharp  contrast ;  the  legal  rules  were  clear,  well 
defined,  and  intensely  technical  and  arbitrary.  In  their  place  the 
codes  have  substituted  a  few  broad  principles,  stated  in  a  very 
general  form  without  exception  or  limitation,  which  are  conceded 
to  be  a  statutory  enactment  of  the  doctrines  which  prevailed  in 
courts  of  equity.  If  these  provisions  of  the  statute  are  accepted 
according  to  their  literal  import,  and  are  applied  to  the  civil 
action  when  used  for  any  and  all  purposes,  for  maintaining  a 
legal  as  well  as  an  equitable  right,  a  complete  revolution  will  be 
wrought  in  the  judicial  methods  of  enforcing  legal  duties  and 
pursuing  legal  remedies ;  all  civil  actions,  so  far  as  concerns  the 
parties  and  the  rules  which  control  their  selection,  will  be  assimi- 
lated to  suits  in  equity.  This  total  change  in  the  nature  of 
actions  has  been  regarded  with  disfavor  by  the  judicial  mind  ;  and 
the  courts  have,  on  the  whole,  failed  to  carry  out  the  plain  intent 
or  even  the  letter  of  the  statutory  requirements.  Some  judges 
have  boldly  taken  the  ground  that  these  general  provisions  of  the 
codes  can  only  be  applied  to  equitable  suits,  and  that  legal  actions 
are  left  under  the  operation  of  the  common-law  doctrines.  Other 
judges,  while  admitting  that  the  equity  doctrine,  as  to  parties,  has 
been  introduced  as  a  constituent  element  of  the  new  procedure, 
have  shrunk  from  its  application  in  numerous  instances,  and  a 
confusion  without  rule  or  guide  has  been  the  inevitable  result. 


INTRODUCTORY   CHAPTER.  39 

If  the  object  of  the  reform  is  to  be  accomplished ;  if  simplicity, 
certainty,  and  directness  are  to  be  attained  in  the  modes  of  proced- 
ure ;  if  controversies  are  to  be  determined  upon  their  merits,  and  not 
upon  any  collateral  and  technical  issues,  —  the  uncertainty  which 
now  exists  to  so  great  an  extent  concerning  the  parties  to  the  civil 
action  must  be  removed,  and  some  plain  and  correct  principle 
must  be  firmly  settled  and  invariably  applied.  In  arriving  at  and 
establishing  this  universal  principle,  two  alternatives  only  are 
jiossible.  The  provisions  of  the  codes  may  be  confined  exclu- 
sively to  equitable  actions,  and  legal  actions  riiay  be  left  under 
the  control  of  the  ancient  common-law  rules,  so  that  no  change 
whatever  in  relation  to  parties  would  be  effected  by  the  reformed 
procedure  ;  or  these  provisions  may  be  followed  in  their  letter 
and  their  spirit,  and  rigorously  enforced  alike  in  all  species  of 
actions,  in  which  case  the  common-law  rules,  so  far  as  they  differ 
from  the  equitable,  would  be  entirely  abandoned,  and  would 
wholly  disappear  from  the  system  of  procedure.  The  former  of 
these  alternatives  is  possible  ;  but  it  would  be  an  act  of  judicial 
legislation,  a  substantial  repeal  of  the  statutory  enactment.  The 
second  is  in  plain  accord  with  the  spirit  and  even  letter  of  the 
codes ;  although  it  involves  a  bold  departure  from  some  of  the 
most  distinctive  notions  of  the  common  law,  it  is  nevertheless 
entirely  practicable  and  even  easy  of  accomplishment. 

§  89.  The  mode  of  presenting  the  affirmative  subject-matter  or 
cause  of  action  involves  both  the  general  principles  of  pleading 
introduced  by  the  codes  and  their  special  application  on  the  part 
of  the  plaintiff.  The  theory  of  pleading  contained  in  the  new 
procedure  is  often,  and  perhaps  generally,  regarded  as  the  most 
important  element  of  the  reform,  as  the  central  thought  from 
which  all  the  other  portions  of  the  system  have  been  derived. 
As  already  stated,  I  consider  this  to  be  an  erroneous  opinion. 
Having  once  established  the  fact  of  a  single  civil  action  adapted 
to  all  rights  and  remedies,  and  having  abolished  the  distinctions 
between  legal  and  equitable  proceedings,  the  method  of  pleading 
was  a  natural  and,  indeed,  necessary  result.  It  is  in  the  pleading, 
however,  that  this  primary  conception  of  the  reformed  system  of 
procedure  is  realized  and  made  practical ;  and  the  two  are  so  mut- 
ually dependent,  so  closely  united,  that  they  cannot  be  separated, 
and  each  exhaustively  discussed  by  itself.  The  theory  of  plead- 
ing, according  to  the  new  procedure,  is  perfect  in  its  scientific 


40  CIVIL   REMEDIES. 

character  and  in  its  practical  efficiency.  It  is  simple,  easy  to  be 
understood,  and  true  to  nature.  If  its  principles  are  fully  under- 
stood, no  difficulty  whatever  can  arise  in  their  application.  It 
must  be  conceded,  however,  that  in  some  of  the  States  the  pre- 
vailing methods  of  pleading  fall  far  short  of  this  ideal,  and  are, 
in  fact,  justly  exposed  to  every  possible  objection.  There  is  no 
method,  no  system,  no  rule  ;  the  pleadings  themselves  are  long, 
filled  with  redundant  and  irrelevant  matter  ;  the  issuable  facts  are 
not  averred ;  the  issues  are  not  single,  and  are  often  buried  aijd 
concealed  by  unnecessary  details  of  mere  evidentiary  matter.  In 
short,  the  purpose  of  the  reform  legislation,  as  ex2:)ressed  by  its 
authors,  appears  to  have  completely  failed.  Must  this  result  be 
attributed  to  faults  inherent  in  the  system  ?  Most  emphatically, 
no.  The  condition  wdiich  I  have  thus  briefly  described  exists  in 
certain  States,  not  because  the  principles  of  the  new  procedure 
have  been  carried  out  into  jDractice,  but  because  they  have  been 
utterly  overlooked,  neglected,  and  abandoned.  Although  these  im- 
perfections in  the  actual  modes  of  pleading  under  the  codes  are  far 
too  common,  the  remedy  is  simple  and  easy.  It  is  possible  to  con- 
struct a  system  based  upon  the  plain  text  of  the  statutes  and 
upon  its  correct  judicial  interpretation,  which  shall  express  the 
thought  of  the  law-makers  and  accomplish  the  purpose  which 
they  had  in  view.  Whatever  conflict  of  opinion  there  may  have 
been  at  an  early  day  among  the  judges,  there  is  at  present  a 
remarkable  uniformity  in  their  announcement  of  general  doc- 
trines ;  and  the  failure  on  their  part  has  rather  been  in  applying 
these  doctrines  to  particular  cases  and  in  enforcing  their  observ- 
ance upon  the  bar.  The  reformed  theory  of  pleading,  when 
rightl}"  understood,  and  when  its  principles  are  faithfully  followed 
in  the  practical  administration  of  justice,  tends  to  create  single- 
ness, clearness,  and  unity  in  the  issues;  and  in  these  particulars 
it  actually  excels  the  boasted  common-law  method  of  special 
pleading.  The  study  of  this  theory  demands  an  investigation  of 
the  general  principles  which  lie  at  its  foundation,  and  does  not 
require  an  acquaintance  with  any  prescribed  forms.  Since  all 
the  arbitrar}'  and  technical  dogmas  of  the  common-law  procedure 
have  been  abandoned,  the  art  of  pleading  has  been  made  a  de- 
partment of  the  broader  art  of  narrative  composition.  To  con- 
struct a  perfect  pleading,  according  to  the  ideal  of  the  codes, 
requires  (1)  an  accurate  knowledge  of  the  law,  —  that  is,  of  the 


INTRODUCTORY   CHAPTER.  41 

primary  and  remedial  rights  and  duties  of  the  parties  under  any- 
given  circumstances ;  (2)  a  familiarity  with  the  facts  of  the  par- 
ticular case,  which  involves  the  discriminating  with  certainty 
between  those  facts  that  are  material  and  issuable  and  those 
which  are  evidentiary ;  and  (3)  the  ability  of  writing  the 
English  language,  to  the  extent  at  least  of  composing  a  clear, 
distinct,  and  brief  narrative  of  these  material  facts,  in  such 
manner  that  the  legal  rule  which  they  involve  shall  be  inferred 
from  them  with  certainty.  The  first  and  second  of  these  ele- 
ments constitute  the  principles  of  pleading  so  far  as  they  form 
a  part  of  procedure  and  of  juridical  science  ;  the  third  belongs  to 
rhetorical  science,  and  its  connection  with  the  law  is  simply 
accidental.  It  is  very  evident  from  this  analysis  that  the  forms 
and  precedents  of  pleadings  play  a  much  less  important  part 
now  than  they  did  in  the  ancient  system.  When  the  success  of 
litigant  parties  depended  upon  an  absolute  compliance  with  tech- 
nical rules  and  upon  an  accurate  recital  of  certain  arbitrary  and 
technical  phrases, —  when,  in  fact,  the  pleader  must  rely  upon 
his  memory  more  than  his  reason,  —  the  use  of  well-established 
and  approved  forms  was  proper,  and,  in  fact,  necessary  ;  but  since 
these  features  no  longer  disfigure  the  civil  action  and  disgrace 
the  administration  of  justice,  the  lawyer  is  not  forced  to  consult 
such  guides ;  if  he  has  mastered  the  princij)les  of  the  art,  he 
needs  only  to  cultivate  his  power  of  expression  and  composition 
in  order  to  render  himself  an  adept  in  pleading. 

§  40.  The  proper  mode  of  presenting  the  defensive  subject- 
matter  of  the  action,  in  addition  to  these  general  principles  which 
are  common  to  all  pleadings,  embraces  certain  features  which  are 
peculiar  to  the  defendant's  contention.  By  combining  all  the 
defensive  elements  which  the  codes  provide,  the  general  and 
specific  denials,  the  allegations  of  new  matter,  and  the  claims  of 
affirmative  relief,  the  reformed  theory  far  excels  in  scientific 
completeness  and  in  practical  efficiency  the  common-law  methods 
which  have  been  so  highly  extolled  by  their  advocates  as  the 
perfection  of  logic  applied  in  judicial  affiiirs.  Here,  again,  the 
actual  practice  in  many  States  has  fallen  far  short  of  the  ideal 
presented  by  the  legislation  ;  but  here,  also,  the  defect  is  not  in 
the  system  itself,  but  results  from  a  failure  to  apprehend  its 
principles  and  to  enforce  its  doctrines.  The  full  discussion  of 
this  feature  of  the  civil  action  involves  the  following  subordinate 


42  CIVIL   REMEDIES. 

topics :  the  use  of  the  specific  or  the  general  denial  in  the  formation 
of  issues  ;  the  office  of  the  specific  denial  in  the  raising  of  single 
issues,  and  its  analogies  with  the  special  traverse ;  the  office  of 
the  general  denial,  its  contrast  with  the  common-law  general 
issue,  and  the  defences  which  it  admits ;  the  doctrine  of  new 
matter,  and  the  distinctions  between  it  and  the  ancient  plea  in 
confession  and  avoidance ;  the  union  of  different  defences  in  the 
same  answer,  and  herein  of  equitable  defences  interposed  to 
legal  causes  of  action  ;  and  the  recovery  of  affirmative  relief  by 
the  defendant,  which  includes  the  special  subjects  of  counter- 
claim and  set-off.  The  full  force  and  effect  of  the  denial,  both 
specific  and  general,  its  power  to  raise  single  and  definite  issues, 
its  superiority  to  the  general  issue,  and  the  defences  which  it  ad- 
mits, are  subjects  of  the  highest  importance  in  the  judicial  prac- 
tice, but  have  been  too  much  neglected,  both  by  the  courts  and 
by  the  bar.  In  developing  the  reformed  procedure  into  a  definite 
system,  the  rules  which  determine  the  nature  of  new  matter  and 
the  effect  of  the  general  denial,  are  more  uniform,  accurate,  and 
scientific  than  the  analogous  rules  of  the  common  law,  which 
related  to  the  general  issue  and  the  use  of  special  pleas  by  way 
of  confession  and  avoidance ;  and  in  this  resj^ect  the  superiority 
of  the  new  system  over  the  old  can  be  shown  beyond  the  possi- 
bility of  doubt.  Some  of  the  defensive  elements  belonging  to 
the  civil  action  are  entirely  original.  The  doctrine  of  counter- 
claim, for  example,  is  not  a  mere  extension  of  the  set-off  and  the 
recoupment  of  damages  ;  it  is  a  wholly  new  and  independent 
conception  ;  and,  although  objected  to  and  even  derided  by  the 
early  opponents  of  the  reform,  it  has  been  bodily  adopted  in  the 
recent  modification  of  the  English  procedure,  and  greatly  enlarged 
in  its  scope  and  operation. 

§  41.  The  last  of  the  distinctive  elements  or  features  which 
constitute  the  civil  action  is  the  judgment.  In  thus  designating 
it  as  a  constituent  of  the  action,  I  do  not  refer  to  the  very  relief 
which  is  granted  to  the  litigant  parties,  —  the  recovery  of  land, 
chattels,  money,  or  other  special  benefit.  Such  final  recovery  is 
the  remedy  to  obtain  which  the  action  is  prosecuted,  and,  strictly 
speaking,  forms  no  part  of  the  action  itself,  but  is  rather  its 
object  or  result.  The  questions  which  arise  in  connection  with 
this  branch  of  the  civil  action  do  not,  therefore,  relate  to  the 
final  right  established  by  the  judgment  and  the  relief  secured  by 


INTRODUCTORY  CHAPTER.  -  43 

it,  but  to  its  nature  and  form  as  a  part  of  the  judicial  proceeding, 
and  especially  to  the  modifications  made  by  the  codes  in  the  com- 
mon-law doctrines  concerning  its  unity  and  indivisibility.  The 
equitable  and  the  legal  theories  of  the  judgment,  like  the  same 
theories  of  the  parties,  were  in  marked  contrast  and  opposition 
to  each  other.  In  equity  it  M^as  possible,  and,  indeed,  common, 
for  a  decree  to  be  rendered  which  discriminated  among  the  plain- 
tiffs or  the  defendants,  and  pronounced  in  favor  of  some  against 
the  others  without  regard  to  any  unity  or  identity  of  right  or 
interest.  The  object  of  the  adjudication  was  to  determine  the 
entire  controversy  according  to  the  individual  rights  of  all  the 
litigants ;  and  if  they  were  before  the  court  as  parties  to  the  suit, 
so  that  they  would  be  concluded  by  the  decision,  it  was  not  of 
vital  consequence  whether  they  were  plaintiffs  or  defendants. 
In  short,  the  Court  of  Equity  had  full  power  to  sever  in  its  de- 
cree, to  adjudge  in  favor  of  some  plaintiffs  and  against  others,  in 
favor  of  some  defendants  and  against  others,  to  confer  relief 
upon  the  defendants  or  some  of  them  against  the  plaintiffs  or 
some  of  them,  and  finally  to  settle  the  equities  among  the  co- 
plaintiffs  or  the  codefendants  as  against  each  other.  The  com- 
mon-law theory  of  the  judgment  was  in  every  respect  different 
from  this.  Based  upon  the  intensely  arbitrary  notion  of  joint 
rights  and  obligations,  it  regarded  the  demand  of  co-plaintiffs  on 
the  one  side,  and  the  liability  of  co-defendants  on  the  other, 
except  in  a  certain  well-defined  class  of  cases,  as  a  unit,  as  ut- 
terly incapable  of  being  severed,  as  something  which  must  be 
established  as  to  all,  or  must  fail  as  to  all  the  parties.  In  no 
instance  was  affirmative  relief  granted  to  the  defendant ;  recov- 
eries by  plaintiff  against  plaintiff,  or  by  defendant  against  de- 
fendant, were  unknown.  Since  the  right  of  the  plaintiffs  or  the 
liability  of  the  defendants  was  conceived  of  as  one  and  indivisible, 
the  recovery  must  be  against  all  the  defendants  equally  and  in 
favor  of  all  the  plaintiffs  alike.  As  a  general  rule,  therefore, 
independent  of  statute  and  of  the  few  excepted  qases,  the 
judgment  in  a  common-law  action  could  not  be  severed,  and  be 
pronounced  in  favor  of  some  plaintiffs  and  against  the  others, 
nor  in  favor  of  some  defendants  and  against  others.  No  principle 
of  the  common-law  procedure  was  more  firmly  established  than 
this ;  and  it  represented  all  the  technical  and  arbitrary  notions 
which  characterized  the  entire  system.    The  codes  are  unanimous 


44  CIVIL   REMEDIES. 

in  their  dealing  with  this  subject.  In  the  most  direct  and  com- 
prehensive hmguage  they  reject  these  narrow  dogmas  of  the  law, 
and  establish  the  liberal  doctrines  of  equity,  which  they  apply  to 
the  civil  action  without  exception  or  limitation.  The  statutory 
provisions  are  so  clear,  definite,  and  certain  that  no  reasonable 
doubt  as  to  their  scope  and  meaning  is  possible.  Although  the 
purpose  of  the  law-makers,  and  the  theory  of  their  legislation,  are 
so  plainly  expressed,  the  courts  have  hesitated  and  halted  in 
giving  effect  to  this  intent  and  in  carrying  out  this  design.  The 
change  made  in  the  ancient  order  of  things  is  so  radical  and 
sweeping  that  judges  sometimes  shrink  from  its  contemplation, 
and  seem  to  regard  the  statute  as  though  it  could  not  mean  what 
its  language  declares.  This  evasion  or  ignoring  of  the  legislative 
will  has  by  no  means  been  universal.  In  many  States  the  courts 
have  conformed  to  the  letter  and  the  spirit  of  the  codes,  and 
have  by  their  decisions  established  the  true  principles  which  can 
and  must  be  adopted  and  used  in  constructing  and  arranging  the 
practical  rules  of  procedure  that  regulate  the  recovery  of  judg- 
ments by  means  of  the  civil  action. 

§  42.  Having  described  the  distinctive  elements  and  features  of 
the  civil  action  which  determine  its  peculiar  nature  as  a  judicial 
instrument  for  enforcing  remedial  rights  and  obtaining  remedies, 
I  shall,  in  conclusion,  sketch  the  plan  of  the  present  volume  and 
state  the  order  which  will  be  pursued  in  its  discussions.  The 
general  subject  of  which  it  treats  may  be  properly  styled  "  The 
Civil  Action  according  to  the  Reformed  American  Procedure." 
The  remaining  portion  of  the  work  is  divided  into  five  chapters, 
which  follow  the  order  of  topics  already  indicated  in  the  preced- 
ing paragraphs ;  and  these  chapters  are  again  separated  into 
sections  and  other  minor  subdivisions.  Chapter  First  is  an 
exhaustive  discussion  of  the  fundamental  principle  upon  which 
the  new  procedure  is  based,  —  the  abolition  of  the  distinctions 
between  actions  at  law  and  suits  in  equity,  and  the  doctrine  of 
the  unity,  in  form  and  nature  of  the  single  civil  action  created  by 
the  codes  ;  Chapter  Second  treats  of  the  parties  to  the  civil  action  ; 
Chapter  Tliird,  of  the  presentation  of  the  affirmative  subject- 
matter  or  cause  of  action  by  the  plaintiff;  Chapter  Fourth,  of  the 
presentation  of  the  defensive  subject-matter  of  the  action,  includ- 
ing the  recovery  of  affirmative  relief  by  the  defendant,  either  by 
counter-claim,  cross-complaint,  or  set-off ;   Chapter  Fifth  treats  of 


INTRODUCTORY   CHAPTER.  45 

the  judgment  especially  in  its  relations  with  the  parties.  By 
pursuing  the  order  here  indicated  the  theory  of  the  civil  action, 
so  far  as  it  involves  doctrines  and  principles  peculiar  to  the 
reformed  procedure,  is  presented  in  an  exhaustive  manner. 

§  43.  In  carrying  out  the  plan  which  has  been  explained  in 
this  introductory  chapter,  my  object  has  been  to  furnish  for  the 
bar  and  the  bench  a  treatise  which  ma}^  be  useful  to  them  in  their 
professional  labors,  and  for  the  students  of  law  a  text-book 
which  ma}'  aid  them  in  acquiring  a  knowledge  of  the  reformed 
procedure  in  all  of  its  essential  and  fundamental  principles.  To 
this  end  the  work  is  entirely  based  upon  the  text  of  the  codes 
and  upon  the  decisions  of  courts  which  have  interpreted  that 
text.  In  no  instance  have  my  own  opinions  or  speculations, 
unsupported  by  authority,  been  stated  as  established  rules ; 
whenever  such  opinions  are  given,  their  proper  character  is 
plainly  indicated.  Among  the  vast  number  of  decisions,  many  of 
them  conflicting,  I  have  endeavored  to  distinguish  between  those 
which  repudiate  or  neglect  the  legislative  intent  and  those  which 
follow  and  give  it  effect ;  and  upon  the  basis  of  the  latter  class  I 
have  attempted  to  construct  a  symmetrical  and  harmonious 
system  which  embodies  the  true  principles  of  the  reformed 
procedure. 


PART     FIRST. 

THE  CIVIL  ACTION  ACCORDING  TO  THE  AMERICAN  SYSTEM  OF 
PROCEDURE;  ITS  ESSENTIAL  PRINCIPLES  AND  FEATURES. 

CHAPTER   FIRST. 

The  Principle  of  Unity  in  all  Judicial  Proceedings ;  Abolition  of  the  Distinctions 
between  Actions  at  Law  and  Suits  in  Equity,  and  of  all  the  Common-law  Forms 
of  Action ;  Adoption  of  a  Single  and  Uniform  Judicial  Instrument  called  the 
Civil  Action,  by  which  the  Remedies  known  to  the  Law  are  to  be  obtained,  and 
the  Remedial  Rights  are  to  be  enforced. 

§  44.  The  following  is  the  form  of  the  simple  but  most  com- 
prehensive provision  found  in  the  codes  of  procedure  and 
practice  acts,  embodying  the  fundamental  princij^le  which  is 
the  subject-matter  of  the  present  chapter,  and  which  is  the 
single  source  from  which  all  the  other  portions  of  the  system 
flow  as  necessary  consequences :  "  The  distinction  between 
actions  at  law  and  suits  in  equity,  and  the  forms  of  all  such 
actions  and  suits  heretofore  existing,  are  abolished ;  and  there 
shall  be  in  this  State  hereafter  but  one  form  of  action  for  the 
enforcement  or  protection  of  private  rights  and  the  redress  of 
private  wrongs,  which  shall  be  denominated  a  civil  action."  ^ 
In  a  very  few  of  the  States  the  change  from  the  former  modes 
is  not  so  complete,  and  a  slight  distinction  is  preserved  between 

1  N.  Y.  §  69  ;  Cal.  §  307  ;  S.  C.  §  92  ;  In  several  of  the  States  the  language  of 

Nev.  §  1 ;  Neb.  §  2 ;  Kans.  §  10  ;  Ohio,  §  3;  the  section  differs  slightly  from  the  form 

Ind.  §  1  ;  Minn.  Stat,  at  Large,  ch.  4L  §  1 ;  given  in  the  te.xt,  the  last  clause,  after  the 

Mo.  Wagner's   Stat.  ch.  110,  art.  1,  §  1 ;  word   "  abolisiied,"  reading   as   follows; 

Wise.  R.  S.  ch.  122,  §  8 ;  Flor.  §  49  ;  N.  C.  "  And  in  their  place  tliere  shall  be  here- 

§  12  ;  Dacota,  §  22 ;  Idaho,  §  1 ;  Wash.  §  2  ;  after  but  one  form  of  action,  which  shall 

Wyoming,  §  3 ;  Montana,  §  1 ;  Arizona,  §  1.  be  called  a  civil  action." 

The  provision  in  the  latest  Revision  of  The  provision  of  the  Missouri,  Nevada, 

the  California  Code  (1872)  is  as  follows :  Idaho,  Montana,  and  Washington  codes 

"  §  307  (§  1).  There  is  in  this  State  but  is  the  same  in  substance  and  almost  iden- 

one  form  of  civil  actions  for  the  enforce-  tical  in  language  with  that  quoted  above 

ment   or  protection  of  private  rights,  and  from  the  California  statute, 
the    redress    or    prevention    of    private 
wrongs." 


48  CIVIL   REMEDIES. 

suits  brought  to  obtain  legal  and  those  brought  to  obtain 
equitable  relief.  All  the  common-law  forms  of  action  are 
abolished,  and  one  civil  action  is  established  for  all  remedial 
purposes :  the  proceedings  in  this  civil  action,  however,  may- 
be either  (1)  ordinary  or  (2)  equitable.  The  plainliff  may 
prosecute  his  action  by  equitable  proceedings  in  all  cases  where 
courts  of  chancery,"  before  the  adoption  of  the  code,  had  juris- 
diction, and  must  so  proceed  in  all  cases  where  such  jurisdiction 
was  exclusive.  In  all  other  cases  the  plaintiff  must  prosecute 
his  action  by  ordinary  proceedings.  The  plaintiff  indicates  by 
the  formula,  "  In  ordinary  proceedings,"  or  "  In  equitable  pro- 
ceedings," at  the  commencement  of  his  petition  or  complaint, 
to  which  class  the  action  belongs.  The  provisions  of  the  code 
regulating  the  prosecution  of  actions  apply  to  both  kinds  of 
proceedings  unless  the  contrary  expressly  appears.  In  fact,  the 
only  real  distinction  between  them  is  that  they  are  to  be  placed 
upon  different  dockets  of  the  court,  so  that  the  suits  of  the  one 
class  will  be  tried  by  a  jury,  while  those  of  the  other  class  will 
be  tried  by  the  judge  without  a  jury,  and  the  evidence  in  equi- 
table proceedings  may  be  taken  by  deposition  instead  of  by 
oral  examination  in  open  court. ^  It  is  evident  that  in  these 
States  the  difference  kept  up  between  legal  and  equitable  actions 
is  more  nominal  than  real,  and  that  the  j)rinciple  of  absolute 
unity  prevails  as  truly  in  their  codes  as  in  those  of  the  other 
commonwealths.  As  this  principle  of  unity  in  all  civil  judicial 
procedure,  of  a  single  instrument  by  which  remedies  may  be 
obtained,  rights  asserted,  and  duties  enforced,  lies  at  the  bot- 
tom of  the  entire  system; "as  this  particular  doctrine  has  given 
rise  to  a  great  conflict  of  opinion  and  of  decision  ;  and  as  a 
failure  to  apprehend  its  exact  import,  extent,  and  limits  must 
inevitably  defeat  the  beneficial  results  which  the  reform  was  in- 
tended to  produce,  —  I  shall  at  the  outset  examine  it  with  care, 
and  shall  endeavor  to  ascertain  the  true  intent  of  the  law- 
makers, and  how  far  that  intent  has  been  followed  and  carried 
out  by  the  courts.  That  the  discussion  may  be  exhaustive,  and 
may  present  the  subject  in  all  its  phases,  the  present  chapter 
will  be  separated  into  the  following  sections :  Section  I.  A  the- 
oretical unity,  or  the  theory  of  an  absolute  union  of  legal  and 

1  Ky.  §§  1-13  ;  Iowa,  §§  2507,  2508,  2513,  2514,  2520 ;  Oregon,  §§  1,  376. 


A    THEORETICAL   UNITY   IN    PROCEDURE.  49 

eqiiital)le  actions.  I  shall,  in  the  subsequent  sections,  inquire 
how  far  this  theory  has  been  adopted  by  the  legislatures,  and  to 
what  extent  the  courts  have  gone  in  combining  the  legal  and 
equitable  methods  of  administering  remedial  rights,  viz. :  Sec- 
tion II.  The  general  principles  as  to  the  union  of  legal  and 
equitable  methods  which  have  been  announced  by  the  courts. 
Section  III.  The  union  of  legal  and  equitable  causes  of  action 
and  remedies  in  one  suit.  Section  IV.  The  setting  up  of  equi- 
table defences  in  legal  actions.  Section  V.  The  bringing  a  legal 
action  based  upon  an  equitable  primary  right.  Section  VI.  The 
nature  of  actions,  and  the  essential  distinctions  among  them. 


SECTION    FIRST. 

A  Theoretical  Unity  in  Procedure ;  or  the  Theory  of  an  Absolute  Union  of  Legal 
and  Equitable  Actions  into  a  Single  Judicial  Instrument  for  the  Enforcement  of 
all  Remedial  Rights  and  the  Obtaining  of  all  Remedies. 

§  45.  To  aid  us  in  determining  just  what  the  statutes,  and  the 
courts  in  construing  them,  have  done  in  the  way  of  reducing 
all  forms  of  judicial  action  to  one,  we  may  properly  inquire  what 
is  the  pure  ideal  or  theory  of  such  a  unity.  We  may  assume 
that  the  legislature  had  before  them  in  contemplation  such  an 
ideal  or  theoretic  scheme  ;  and  if  we  can  by  any  a  priori  reason- 
ing, by  any  inferences  drawn  from  the  very  nature  of  the  subject- 
matter,  arrive  at  this  theoretic  conception,  we  shall  certainly  have 
done  much  towards  ascertaining  the  ultimate  legislative  intent. 
Whether  the  legislature  has  by  apt  language  and  by  sufficient 
provisions  worked  out  and  expressed  this  intent  in  a  complete 
manner,  is  another  and  very  different  question.  It  is  very  pos- 
sible, and  in  fact  probable,  that  the  law-makers  had  before  them 
an  ultimate  object  conceived  of  with  some  clearness  and  distinct- 
ness, but  that  they  have  fallen  far  short  of  reaching  that  object. 
In  seeking  to  discover  this  supposed  ideal  or  theory,  the  follow- 
ing questions  must  be  considered  and  answered :  What  is  an 
absolute  and  complete  union  of  legal  and  equitable  methods  and 
actions,  so  that  one  judicial  instrument  should  be  sufficient  for 
the  enforcement  of  all  remedial  rights  and  the  obtaining  of  all. 
remedies  ?  How  far  is  such  a  complete  and  absolute  unity  pos- 
sible ?     What  features  and  elements  in  the  nature  of  primary 

4 


60  CIVIL   REMEDIES. 

riglits  and  of  remedies,  if  any,  stand  in  the  way  of  such  a  result  ? 
"What  features  and  elements,  on  the  other  hand,  tend  to  make 
such  an  amalgamation  practicable  ?  In  order  that  these  ques- 
tions may  be  properh'  discussed  and  correctly  answered,  we  must, 
in  the  first  place,  obtain  a  clear  and  accurate  conception  of  equity 
itself.  In  what  does  equity  consist?  What  are  its  constituent 
parts  ?  In  what  respect  does  it  differ  from  the  other  great  branch 
of  our  jurisprudence,  which  is  termed  the  common  law,  or  "  the 
law "  ?  It  must  be  confessed  that  great  confusion  exists  in 
respect  to  these  elementary  and  fundamental  notions.  We  are 
familiar  with  the  terms  "  equity  "  and  "  law  ;  "  we  constantly 
speak  of  equitable  and  legal  rights,  causes  of  action,  and  modes 
of  procedure ;  and  yet  very  little  attempt  has  been  made  by  even 
the  best  writers  to  point  out  the  exact  elements  of  distinction  be- 
tween the  subjects  of  which  we  so  frequently  speak.  The  his- 
torical origin  and  growth  of  equity  jurisprudence  have  been 
sufficiently  illustrated  in  the  introductory  chapter.  As  the  final 
result  of  this  growth,  the  municipal  law  of  England  and  of  the 
several  States  was  separated  into  two  divisions  or  branches,  each 
administered  by  different  tribunals,  and  each  conferring  different 
remedies  or  reliefs.  Are  these  two  divisions  or  branches  antag- 
onistic to  each  other,  or  are  they  simply  complementary,  or  does 
one  merely  occupy  a  sphere  which  the  other  does  not  ?  Are  the 
primar}'-  rules,  rights,  and  duties  embraced  in  the  department  of 
law  different  from  the  primary  rules,  rights,  and  duties  which 
are  embraced  in  the  department  of  equity  ;  or  does  the  distinction 
lie  solely  in  the  remedies  and  remedial  rights  which  arise  from 
the  violation  of  the  common  primary  rules,  and  in  the  judicial 
processes  b}^  which  these  remedies  are  obtained  ?  These  ques- 
tions present  themselves,  and  must  be  answered,  if  we  would 
determine  the  exact  nature  of  equity  as  distinguished  from  law. 
I  cannot  reply  to  these  inquiries  in  detail ;  to  do  so  would  require 
an  exhaustive  treatise  upon  equity  jurisprudence.  I  can  only 
give  general  results,  and  illustrate  these  conclusions  by  a  few 
familiar  examples,  leaving  it  to  the  reader  to  pursue  the  illus- 
tration through  the  entire  domain  of  equity. 

§  4(j.  Applying  a  thorough  analysis  to  this  department  of  the 
municipal  law,  examining  the  essential  nature  of  each  practical 
rule  and  principle  contained  in  it,  equity  as  a  whole,  and  so  far 
as  it  is  different  from  the  law,  is  resolved  into  and  consists  of  the 


NATURE   OF   EQUITY.  51 

following  constituent  parts ;  namely,  first,  certain  primary  rules, 
with  the  primary  rights  and  duties  flowing  from  them,  irrespective 
of  the  remedies,  which  are  different  from  the  primary  rules  upon 
the  same  subject-matter,  with  the  primary  rights  and  duties 
flowing  therefrom,  which  are  contained  in  the  law  ;  and,  secondly, 
certain  remedies  which  are  known  and  conferred,  irrespective  of 
an}'-  distinction  in  the  primary  rules  and  rights  for  whose  viola- 
tion the  remedies  are  granted.  The  peculiar  feature  of  equity, 
which  distinguishes  it  as  a  department  from  the  law,  does  not 
consist  solel}^  in  the  fact  that  remedies  are  known  and  used  by 
it  which  the  law  does  not  know  and  use,  nor  solely  in  the  fact 
that  there  are  j)rimary  equitable  rights  and  duties,  irrespective 
of  the  remedies,  different  from  any  at  law,  but  in  both  of  these 
facts  combined.  These  propositions  can  be  made  plain  by  a 
few  illustrative  examples.  First,  equity  as  a  department  con- 
tains certain  primary  rules,  with  the  primary  rights  and  duties 
flowing  from  them,  diiferent  from  any  rules  upon  the  same  sub- 
ject-matter embraced  in  the  law.  In  this  proposition  w^e  dis- 
regard for  the  present  the  remedies  which  are  given  for  the 
violation  of  primar}^  rights ;  and  we  might  assume,  for  the  pur- 
poses of  the  discussion,  that  the  remedies,  the  reliefs,  given  by 
equity  were  exactly  the  same,  no  moi'e,  no  less,  and  no  other 
than  those  given  by  the  law,  whatever  might  be  the  nature  of 
the  primary  right  broken  ;  that  is,  that  equity  could  give  no 
judgments  except  the  recovery  of  possession  of  lands  or  chattels, 
or  the  recovery  of  a  sum  of  money.  Upon  that  hypothesis  there 
are  primary  equitable  rights  in  relation  to  particular  subject- 
matters  quite  different  from  the  primary  legal  rights  in  relation 
to  the  same  subject-matters.  In  reference  to  most  of  these  it 
would  be  proper  to  say  that  they  are  additional  to  those  which 
exist  at  law  ;  they  do  not  contradict,  they  are  not  antagonistic 
to,  any  rules  upon  the  same  subject-matter  which  the  common 
law  provides ;  but  they  are  supplementary,  touching  upon  par- 
ticulars in  reference  to  which  the  law  is  silent.  Between  this 
class  of  equitable  rules  and  the  corresponding  legal  rules,  there 
is  therefore  no  conflict ;  each  is  absolutely  true  in  all  places 
and  at  all  times ;  the  equity  courts  recognize  and  administer 
one,  the  law  courts  recognize  and  administer  the  other,  without 
clashing  or  discord.  But  in  respect  to  another  portion  of  these 
primary  equitable  rules  and  rights  it   must   be  said  that  they 


62  CIVIL   REMEDIES. 

are  not  merely  additional  to,  but  are  in  conflict  Avitli,  the  legal 
rules  and  rights  upon  the  same  subject-matter  ;  between  this  class 
of  equitable  rules  and  rights  and  the  corresponding  legal  rules 
and  rights  there  is  therefore  an  antagonism  ;  the  equity  courts 
admit  and  uphold  a  particular  right  as  growing  out  of  a  particu- 
lar condition  of  circumstances  which  the  law  courts  not  only 
refuse  to  recognize,  but  which  they  would  deny  and  oppose. 
To  this  extent  there  is  a  contrariety  and  discord  between  the 
two  departments  of  the  municipal  law,  which  cannot  be  con- 
cealed, but  which  has  gradually  grown  less  and  less,  and  which 
Avill  finally  disappear. 

§  47.    A  few  examples  will  illustrate  these  statements.     At 
an  early  day  the  common-law  rule  was  peremptory  that  the  lial)il- 
ity  of  the  obligor  upon  a  sealed  undertaking,  like  a  bond,  could 
only  be  discharged  by   an  instrument  of  the  same  legal  value ; 
that  is,  by  a  sealed  release  or  acquittance.     Mere  payment,  al- 
though evidenced  by  a.  written  receipt,  was  not  enough.     The 
compulsive  efficacy  of  the  seal  could  only  be  overcome  by  an  act 
of  a  legal  nature  equally  high.     If,  therefore,  the  debtor  on  a 
bond  had  paid  the  demand  in  full,  and  had  even  taken  a  written 
receipt  therefor,  but  had  failed  to  procure  a  surrender  of  the 
obligation   into   his  own   custody,  or  a  release   of  his   liability 
thereon,  the  creditor  might  still  sue  in  a  common-law  action  on 
the  bond,  and  the  laiv  gave  no  defence  ;  the  law  said,  in  fact, 
that  the  liability  still  existed  ;  the  primary  right  of  the  creditor 
and  the  primary  duty  of  the  debtor  remained  unchanged.     In  the 
course  of  time  the  equity  courts  intervened ;  and  this  \\as  one 
of  the  first  steps  which  equity  took  in  its  long  march  towards 
the  present  completed  results.      The  debtor  upon  the  above- 
mentioned  facts  existing,  by  commencing  a  suit  in   chancery, 
would  obtain  the  remedy  of  an  injunction  perpetually  restraining 
the  creditor  from  the  prosecution  of  his  common-law  action,  and 
perhaps  the  remedy  that  the  bond  should  be  surrendered  and 
cancelled.      It  is  not  the  form  of  remedy  at  which  I  now  wish  to 
look,  but  at  the  primary  equitable  right  for  whose  maintenance 
the  remedy  was  contrived.     Plainly  the  primary  right  and  duty 
which  equity  here  conferred   upon  the  creditor  and  the  debtor 
respectively  were  diametrically  the  opposites  of  the  primary  right 
and  duty  which  the  law  conferred  upon  the  same  persons.     The 
law  said  the  original  right  of  the  creditor  and  duty  of  the  debtor 


NATURE   OP  EQUITY.  63 

were  exactly  the  same  as  though  the  bond  was  in  full  force  after 
default  in  j^ayment.  Equity  said  this  original  right  of  the  cred- 
itor and  duty  of  the  debtor  had  been  absolutely  changed  and 
destroyed,  that  the  liability  on  the  obligation  had  ended,  that 
the  duty  of  the  obligor  to  pay  had  gone,  and  that  in  its  place  a 
right  had  arisen  that  the  evidence  of  such  payment  and  dis- 
charge should  be  made  perfect  by  the  acts  of  the  obligee.  It 
would  be  a  mistaken  view  to  assert  that  equity  here  simply 
granted  a  remedy  to  the  debtor  which  the  law  did  not  give. 
Remedies  are  not  conferred  by  equity  courts  any  more  than  by 
law  courts,  unless  there  is  a  primary  right  and  duty  which  has 
been  violated,  and  from  the  breach  of  which  a  remedial  right 
and  duty  arises.  In  the  case  supposed,  the  law  most  emphatically 
said  the  primary  right  of  the  creditor  upon  the  bond  still  existed 
unaffected,  and  the  primary  duty  of  the  debtor  remained  undi- 
minished, and  gave  the  legal  remedies  to  enforce  the  same.  Equity 
as  emphatically  denied  all  this,  and  asserted  that  there  was  no 
such  primary  right  or  duty  left  in  existence.  There  was,  there- 
fore, a  plain  and  direct  conflict  in  the  primary  rights  and  duties 
which  flowed  from  exactly  the  same  facts  and  circumstances. 
This  is  a  simple  illustration  of  the  class  of  equitable  primary 
rights  and  duties  which  are  opposed  and  antagonistic  to  the  cor- 
resj^onding  primary  legal  rights  and  duties.  It  is  true  this  i)ar~ 
ticular  antagonism  no  longer  exists.  Either  by  means  of  the 
gradual  adoption  of  equitable  principles  by  the  common-law 
courts  or  by  means  of  statutes,  the  same  rule  as  to  the  discharge 
of  a  sealed  obligation  applies  in  law  as  in  equity,  and  the  de- 
fence of  payment  and  discharge  can  be  set  up  in  a  legal  action  ; 
but  this  does  not  lessen  the  appropriateness  of  the  illustration. 

§  48.  If  we  carefully  analyze  the  whole  body  of  equitable 
primary  rules,  we  shall  And  but  few  in  which  there  is  any  direct 
conflict  with  the  legal  rules  relating  to  the  same  subject-matter. 
In  many  instances  where  there  was  once  such  contrariety,  we 
shall  discover  that  the  law  lias  been  changed  from  its  original 
arbitrariness,  and  has  been  made  to  conform  with  the  equitable 
doctrine.  Another  example  will  illustrate  the  large  class  of  equi- 
table primary  rules  and  rights  which  are  simpl}'  additional  to 
those  recognized  by  the  law.  A.  enters  into  a  contract  in  writing 
by  which  he  agrees  to  convey  to  B.,  by  a  good  and  sufficient 
deed,  a  parcel  of  land,  upon  being  paid  the  purchase  price  in  a 


54  CIVIL   REMEDIES. 

stipulated  manner ;  the  price  is  paid,  and  A.  refuses  to  convey. 
Or,  again,  A.  receives  from  B.  a  sum  of  money  under  an  author- 
ity and  agreement  to  purchase  therewith  for  B.  a  parcel  of  land, 
taking  the  deed  to  the  latter ;  he  purchases  the  land  with  the 
money,  but  takes  the  conveyance  thereof  to  himself.  In  the 
first  case  the  law  sees  nothing  but  a  contract,  and  the  rights 
which  flow  therefrom.  B.  has  a  right  in  personam  against  A., 
but  no  right  in  rem,  no  right  of  property  in  the  land.  There 
has  been  a  violation  of  contract ;  and  the  law,  regarding  no  other 
relations  between  the  parties,  gives  to  B.  the  remedy  of  com- 
pensation. This  primary  personal  right,  and  also  this  remedial 
right,  would,  upon  the  death  of  B.,  pass  to  his  administrators  or 
executors.  Equity,  apiDlying  the  great  princi2:)le  of  regarding  as 
done  what  ought  to  have  been  done,  clothes  B.  with  another  and 
broader  primary  right  additional,  but  in  no  wise  antagonistic  to 
that  which  the  law  creates.  It  says  that  B.  has  acquired  a  right 
in  rem,  a  right  of  property  in  the  land,  an  ownership  which  is 
called  equitable,  it  is  true,  but  none  the  less  an  actual  ownership. 
The  land  is  B.'s,  and  not  A.'s  ;  and  the  proprietary  right  upon 
B.'s  death  descends  to  his  heirs,  and  is  subject  to  the  dower  of 
his  widow.  There  is  nothing  here  contrary  to  the  legal  view  ; 
because  while  equity  gives  to  B.  a  property  in  the  land,  and  fur- 
nishes him  with  remedies  appropriate  to  maintain  and  secure 
that  proprietorship,  it  does  not  deny  nor  override  his  le(jal  right ; 
the  latter  is  left  in  full  force  and  effect.  In  fact,  B.  has  an  elec- 
tion. Relying  upon  his  mere  ijersonal  right  flowing  from  the 
contract,  he  or  his  executors  or  administrators  may  sue  in  a  court 
of  law  to  recover  damages  for  a  violation  of  the  agreement ;  or, 
relying  upon  his  real  right,  —  his  ownership  of  the  land,  —  he  or 
his  heirs  may  sue  in  a  court  of  equity,  and  have  his  proprietor- 
ship established,  the  legal  muniments  of  his  title  perfected,  and 
the  possession  transferred.  In  the  other  supposed  case  there  is 
a  contract  and  a  fraud.  The  law  still  sees  nothing  but  a  jjersonal 
right  growing  out  of  the  deceit  and  the  fraudulent  violation  of 
the  agreement ;  Avhile  equity,  not  denying  that,  recognizes  also  a 
real  right  in  the  land,  treats  B.  as  the  owner  thereof,  and  enables 
him  to  establish  that  ownership,  and  to  obtain  possession.  It 
is  a  glaring  error  to  suppose,  as  does  a  recent  English  writer  on 
the  principles  of  equity,  tliat  in  these  and  similar  instances  equity 
only  furnishes  different  remedies  from  those  known  to  the  law. 


NATURE   OF   EQUITY.  55 

I  repeat,  there  can  be  no  remed}^  without  a  primary  right  vio- 
lated ;  and  it  is  undeniable  that  equity  conceives  of  B.  as  clothed 
with  a  primary  right  of  property  in  the  land  altogether  unlike 
the  personal  right  arising  from  contract  onW,  which  the  law  ad- 
raits.  The  truth  of  this  proposition  is  -demonstrated  by  the  single 
fact  that  in  one  instance  the  right  passes  to  heirs  as  an  inheri- 
tance, and  in  the  other  to  the  administrators  as  a  thing  in  action. 
It  is  true  the  equitable  estate  is  in  certain  respects  inferior  to 
the  corresponding  legal  estate  ;  but  it  is  an  estate  which  can  be 
transmitted,  and  is  between  the  immediate  parties  as  perfect  as  an 
estate  in  law.  These  examples  sufficiently  illustrate  my  position, 
and  tlie  very  large  class  of  cases  in  which  equity  supplements 
the  law  within  the  domain  of  primary  rights  and  duties. 

§  49.  Secondly.  In  the  second  place,  equit}^,  as  a  department 
of  the  entire  municipal  law,  consists  of  the  remedies  which  it 
confers  upon  litigant  parties.  Viewing  the  subject  in  this  aspect, 
we  disregard,  for  the  time  being,  the  nature  of  the  primary  rights 
on  account  of  whose  violation  remedies  become  necessary ;  and 
we  might  assume  it  to  be  true,  so  far  as  the  present  inquiry  ex- 
tends, that  the  primary  rights  which  equity  acknowledges  and 
maintains  are  exactly  the  same  as  those  acknowledged  and 
maintained  by  the  law.  The  peculiarity  of  its  remedies,  as  com- 
pared with  the  kinds  of  relief  given  bylaw  courts,  is  undoubtedly 
the  most  prominent  feature  of  equity,  and  is  so  striking  that 
some  writers  have  spoken  of  equity  as  consisting  alone  of  rem- 
edies and  remedial  rights.  This  opinion  is  certainly  erroneous  ; 
for,  important  as  are  the  remedies  which  it  furnishes,  they  neces- 
sarily assume  some  primary  right  which  has  been  broken.  These 
various  elements  will  appear  from  a  simple  analysis.  A  certain 
physical  act  or  transaction  occurs  ;  one  person  makes  an  agree- 
ment to  convey  his  farm  to  another  upon  payment  of  the  pur- 
chase price.  This  is  the  fact,  the  transaction  ;  and  it  remains 
the  same,  whatever  rules  of  law  relate  to  it,  or  rights  arise  from 
it.  The  common  law,  as  we  have  seen,  recognizes  a  primary 
personal  right  in  the  vendee  and  duty  in  the  vejidor,  growing 
out  of  the  contract,  and  from  their  violation  admits  the  reme- 
dial right  to  compensation,  and  the  remedy  of  damages.  Equity 
from  the  same  facts  recognizes  in  the  vendee  a  primary  real 
right  over  the  land,  an  equitable  property  therein  ;  and  in  order 
to   protect  this  ownership,  which  is  from  its  nature  imperfect, 


56  CIVIL   REMEDIES. 

it  must  contrive  some  remedy  entirely  different  from  that  given 
l)y  the  liiw.  The  remedy  of  damages  is  fitted  to  and  sufficient 
for  the  legal  personal  right  of  contract,  but  is  utterly  unfitted 
to  and  insufficient  for  the  equitable  real  right  of  property  in 
the  land.  The  new  remedy  of  specific  performance  is  therefore 
based  upon  this  equitable  primary  right,  and  is  made  necessary 
by  it. 

§  50.  The  remedies  themselves  which  equity  administers  are, 
in  their  relation  to  the  law,  of  three  distinct  kinds  :    (1)  Those 
which  are  utterly  different  from  any  that  are  known  and  used  in 
the  legal  procedure  ;  (2)  Those  which  the  legal  procedure  recog- 
nizes, and  the  benefits  of  whicli  it  obtains  in  an  indirect  manner ; 
(3)  Those  which  are  the  same  in  substance  and  form,  both  in 
equity  and  law.     Here,  again,  a  few  examples   will  do  all  the 
work    of    an   exhaustive   analysis.      The    classes   to    which    all 
common-law  remedies  may  be  reduced  are  few  and  fixed;  but 
in  equit}^  there  is  no  positive  limit  to  the  variety  of  relief  which 
the  court  can  grant,  suited  to  the  innumerable  changes  of  cir- 
cumstances that  may  arise.     The  classes  of  legal  remedies  are  but 
two,  —  tlie   recovery  of  possession  of  specific  things,  lands   or 
chattels,  and  the  recovery  of  a  sum  of  money.     In  the  first  of 
these    two   classes    must   be  included   the  special    common-law 
methods  of  partition,  admeasurement  of  dower,  and  the   like, 
which  are,  in  fact,  recoveries  of  the  land.     Of  the  innumerable 
varieties   of  equitable  reliefs,  there  are   many  which  have    no 
resemblance  whatever  to  either  of  these  two  classes,  nor  to  any 
particular  instances  embraced  within   them  ;    among  them,  the 
preventive   remedy   of    injunction,    the    restorative     remedy   of 
mandatory  injunction,  applied  in  cases  where  physical  obstruc- 
tions are  removed,  the  remedy  of  re-formation  or  re-execution, 
that   of   specific    performance,    and   others  which   need  not  be 
specified.     In   the   second    place,   there  are  equitable  remedies, 
which  the  legal  procedure  does  not  grant  directly,  but  the  bene- 
fits of  which  it  obtains  and  confers  indirectly.     A  single  example 
will  suffice,  and  it  is  the  familiar  relief  of  rescission  or  cancel- 
lation.    A   court  of  equity  entertains  an  action  brought  for  the 
express  purpose  of  procuring  a  contract  to  be    rescinded,  and 
renders  a  judgment  which  confers  the  exact  remedy  demanded 
by  the  suitor.     A  court  of  law  entertains  an  action  for  the  re- 
covery of  specific  chattels  or  of  money  as  debt  or  damages ;  and 


NATURE   OF   EQUITY.  57 

although  nothnig  is  said  concerning  it,  either  in  the  pleadings  or 
in  the  judgment,  a  contract  is  actually  rescinded,  and  the  entire 
decision  is  based  upon  that  fact.  Here  the  remedy  of  rescission 
is  not  in  terms  asked  for  nor  granted  by  the  court  of  law  ;  but 
all  its  effects  and  benefits  are  indirectly  conferred  in  the  legal 
action.  A  contract  which  had  been  entered  into  between  the 
parties  is  regarded  as  cancelled  and  rescinded,  or  else  no  judg- 
ment for  possession  of  the  chattel,  or  for  recovery  of  the  money 
value  or  damages,  could  have  been  rendered.  Finally,  there  is  a 
class  of  remedies  used  by  courts  of  equity  which  are  identical 
in  substance  with  those  relating  to  the  same  subject-matter 
used  by  courts  of  law.  Familiar  instances  of  this  kind  are  the 
damages  which  are  frequently  awarded  in  equitable  actions  as 
ancillary  to  the  main  relief ;  the  partitioning  of  land  among  co- 
owners,  and  the  admeasurement  of  dower  to  widows,  in  which  the 
final  relief  is  exactly  the  same  as  that  conferred  by  the  corre- 
sponding legal  actions  ;  the  process  of  accounting  and  deter- 
mining of  balances  in  favor  of  one  or  the  other  party,  the 
result  of  which  is  identical  with  that  reached  by  the  now  obsolete 
common-law  action  of  "  account." 

§  51.  Equitable  remedies  may  also  be  examined  in  respect  of 
another  element  which  has  a  direct  connection  with  the  union 
of  legal  and  equitable  procedure  into  one  uniform  system.  We 
may  inquire,  What  of  all  the  remedies  which  equity  now  ad- 
mits and  grants  might  possibly  be  administered  by  the  courts 
of  law  through  the  means  of  purely  legal  methods,  including 
the  jury  trial ;  and  what,  if  any,  cannot  be  thus  administered, 
but  require  a  continuance  of  the  modes  of  procedure  that  are 
purely  equitable  ?  In  accounting  for  the  rise  and  growth  of  the 
equitable  jurisdiction,  it  has  sometimes  been  said  that  the  whole 
proceeded  from  the  inability  of  juries  to  pass  upon  any  issues 
which  were  not  reduced  to  the  affirmance  and  denial  of  a  single 
fact ;  that,  as  the  ancient  law  courts  had  no  power  of  deciding 
disputed  facts  except  by  a  jury,  a  resort  to  other  tribunals,  which 
consisted  only  of  one  or  more  judges,  became  an  absolute  neces- 
sity in  the  large  class  of  cases  in  which  the  facts  were  compli- 
cated, and  the  issues  involved.  There  is  in  this  account 
something  of  truth  and  much  of  error.  What  is  the  exact  prov- 
ince of  the  jury  in  the  trial  of  a  common-law  action  ?  Its  func- 
tions   should   not   be  confounded  with  those  of  the  court.     It 


58  CIVIL   REMEDIES. 

passes  upon  issues  of  fact,  and  announces  its  decision  in  the  form 
of  a  verdict,  which,  at  the  present  day  and  in  this  country,  is 
with  few  exceptions  a  general  verdict.  Upon  this  verdict  the 
court  pronounces  the  judgment,  or,  in  other  words,  awards  the 
remedy  which  the  hiw  designates  as  appropriate.  The  jury  has 
nothing  to  do  with  this  remedy ;  its  function  is  limited  to  the 
preliminar}^  inquiry  whether  the  litigant  party  is  entitled  on  the 
facts  to  the  remedy  demanded;  and,  it  having  answered  this  ques- 
tion in  the  affirmative,  the  court  completes  the  judicial  proceed- 
ing, and  grants  the  relief.  Now,  the  nature  of  this  remedv  does 
not  in  the  least  depend  upon  the  simplicity  or  the  complexity  of 
the  issues  of  fact  which  the  jury  decides  as  a  preliminary  step  ; 
that  issue  may  be  single  and  simple,  or  it  may  be  complicated 
and  involved,  obscure  and  difficult,  as  complex  as  any  which  are 
ever  presented  to  a  chancellor  ;  but,  when  once  determined,  the 
judge  awards  the  final  remedy  of  pecuniary  damage,  recovery  of 
lands,  or  recovery  of  chattels,  as  the  case  may  be.  It  is  perfectly 
clear,  upon  this  statement  of  the  jurj^'s  functions,  that  after  it 
had  performed  its  part,  and  passed  upon  the  controversy  of  fact, 
the  court  might  upon  such  decision  award  manj^  other  remedies 
now  termed  equitable  with  the  same  ease,  the  same  propriet}^, 
and  the  same  certainty  that  it  now  awards  the  legal  remedies  of 
pecuniary  compensation,  possession  of  lands,  or  possession  of  chat- 
tels. There  would  be  nothing  in  the  nature  of  the  special  equi- 
table remedy  conferred  which  would  add  to  the  labor  of  the  jury, 
or  increase  the  complexity  of  the  issue  which  it  must  decide. 
Among  such  equitable  remedies  are  injunction,  specific  perform- 
ance, cancellation  or  rescission,  re-execution  or  re-formation,  and 
perhaps  some  others.  It  would  certainly  be  within  the  power  of 
a  jury,  for  example,  to  determine  whether  a  defendant  was  com- 
mitting acts  of  waste,  or  of  continuous  trespass,  or  of  nuisance, 
so  that  the  court  might  grant  a  judgment  for  a  perpetual  injunc- 
tion, or  for  a  removal  of  the  nuisance  ;  or  whether  the  defendant 
had  entered  into  a  contract  to  convey  land  which  he  refuses  to 
fulfil,  so  that  the  court  might  grant  a  judgment  for  specific  per- 
formance ;  or  whether  the  defendant  had  been  guilty  of  fraud  in 
procuring  a  contract  to  be  executed,  so  that  the  court  might  grant 
the  remedy  of  cancellation ;  or  whether  the  contract  had  been 
executed  under  a  mutual  error,  so  that  the  court  might  grant  a 
judgment  for  re-formation.     The  jury  could  as  easily  and  readily 


NATURE    OF    EQUITY.  59 

pass  upon  these  several  issues  of  fact  preliminary  to  the  award  of 
the  special  relief  thereon  as  it  could  decide  the  same  issues  when 
they  were  to  be  followed  by  a  judgment  for  pecuniary  damages. 
I  am  not  now  arguing  that  a  change  in  these  respects  would  be 
an  improvement :  I  am  simply  showing  that  there  is  nothing  in 
the  nature  of  many  important  and  very  common  equitable  reme- 
dies which  necessarily  removes  them  from  the  power  of  the  law 
courts  and  from  the  province  of  a  jury ;  the  issues  of  fact  upon 
which  the  remedial  right  depends  may  be  determined  by  a  jury, 
and  the  special  relief  thereon  granted  by  the  court. 

§  52.  On  the  other  hand,  there  are  forms  and  kinds  of  equita- 
ble remedy  which  are  so  intimately  and  necessarily  connected 
with  the  very  processes  of  examining  and  settling  the  facts  upon 
which  the  right  to  the  relief  depends,  that  a  judicial  determina- 
tion of  the  issues  in  the  common-law  method  by  means  of  a  jury 
is  practically  impossible.  The  experience  of  English  and  Ameri- 
can tribunals  has  demonstrated  the  truth  of  this  proposition.  A 
single  example  is  sufficient.  The  remedy  of  accounting,  of  tak- 
ing, stating,  and  settling  an  account,  and  the  ultimate  balances 
payable  to  the  litigant  parties,  although  it  results  in  a  mere  judg- 
ment for  the  payment  of  money  in  one  or  diiferent  sums,  neces- 
sarily involves,  under  the  various  circumstances  in  which  it  may 
be  used,  a  special  kind  of  judicial  labor  which  is  utterly  beyond 
the  competency  of  a  jury.  In  the  same  class  is  to  be  placed  the 
marshalling  of  assets  in  all  its  forms  and  with  all  its  incidents, 
and  other  remedies  of  a  like  general  nature. 

§  53.  The  results  of  the  foregoing  analysis  may  be  summed  up 
as  follows  :  Equity,  as  a  distinct  department  of  the  municipal 
law,  consists  in  part  of  primary  rules  and  rights  flowing  there- 
from different  from  the  legal  rules  and  rights  relating  to  the 
same  subject-matter,  and  in  part  of  special  remedies  and  remedial 
rights.  A  portion  of  these  primary  rules  and  rights  are  strictly 
antagonistic  to  and  in  conflict  with  those  which  the  law  would 
apply  to  the  same  facts  and  events,  while  the  remaining  portion 
are  simply  additional  and  supplementary  to  the  corresponding 
legal  rules  and  rights.  The  remedies  which  form  so  large  an 
element  in  equity  are  divided  in  a  similar  manner ;  many  of  them 
are  different  in  every  respect  from  those  conferred  by  legal  tribu- 
nals ;  the  beneficial  effect  of  others  the  legal  procedure  procures 
in  an  indirect  manner,  while  the  residue  are  identical  in  sub- 


60  CIVIL   REMEDIES. 

stance  and  in  tlieir  final  form  with  the  legal  judgments  which  are 
obtained  upon  the  same  facts  and  for  the  same  purposes. 

§  54.  Having  thus  inquired  into  the  essential  nature  of  equity, 
and  ascertained  its  constituent  elements,  we  are  enabled  to  dis- 
cuss the  theory  or  pure  ideal  of  a  union  between  law  and  equity 
with  greater  accuracy  and  certainty.  The  theory  of  a  complete 
union  or  consolidation  does  not  and  cannot  involve  a  change  in 
the  rules  as  to  primary  rights  and  duties,  which  form  a  most  im- 
portant division  of  equity.  The  entire  municipal  law  now  con- 
tains :  (1)  Legal  rules  defining  rights  and  duties  applicable  to  all 
the  facts  and  circumstances  which  have  been  brought  within  the 
range  of  jural  relations  ;  (2)  Equitable  rules  defining  rights  and 
duties  applicable  to  certain  determined  classes  of  these  facts  and 
circumstances,  which  are  additional  and  supplementary  to  the  legal 
rules  applicable  to  the  same  classes  ;  and  (3)  Equitable  rules 
applicable  to  a  comparatively  very  small  number  of  these  facts 
and  circumstances,  which  are  really  contrary  and  antagonistic  to 
the  legal  rules  applicable  to  the  same.  There  is,  therefore,  no 
clashing  or  conflict,  no  doubt  or  uncertainty,  as  to  the  final  abso- 
lute rights  and  duties  of  individuals,  except  so  far  as  such  con- 
flict and  uncertainty  may  spring  from  the  existence  of  the  very 
small  number  of  rules  in  the  third  class,  where  the  antagonism 
between  law  and  equity  does  actually  exist.  It  is  certainly 
strange  that  in  an  age  and  country  advanced  in  civilization  the 
municipal  law  should  present  such  an  anomaly ;  it  is  certainly 
absurd,  for  example,  that  a  married  woman's  contracts  should 
be  utterly  void  according  to  the  doctrines  of  the  law,  while, 
according  to  the  doctrines  of  equity,  they  may  be  valid  and 
enforceable  out  of  her  property.  If  any  change  is  to  be  made 
in  accomplishing  an  absolute  union,  it  must  be  in  the  legal  and 
not  in  the  equitable  rules  where  this  discord  exists.  The  latter 
are  confessedly  the  more  just,  and  more  in  accordance  with  the 
sentiments  and  opinions  of  the  age ;  while  the  former  have  become 
practically  obsolete,  and  would  ho,  totally  abandoned  in  any  revi- 
sion or  codification  of  the  entire  jurisprudence.  An  absolute 
union,  therefore,  would  leave  in  existence  and  in  active  opera- 
tion all  the  rules  of  equity,  which  define  primary  rights  and 
duties,  and  all  the  rules  of  the  law,  except  those  few  in  number 
which  are  directly  opposed  to  some  j)articular  equitable  doctrine 
or  principle.      The  municipal  law  would  thus  be  homogeneous 


A   THEORETICAL   UNITY   IN   PROCEDURE.  61 

and  unified ;  and  were  it  not  for  the  distinction  in  the  remedies, 
which  would  still  remain,  the  names  "law"  and  "equity"  might 
be  abandoned. 

§  55.  The  theory  of  an  absolute  union  does  not  imply  a  change 
in  or  abolition  of  any  remedies,  either  legal  or  equitable.     The 
municipal  law  in  the  administration  of  justice,  and  for  the  pur- 
pose of  maintaining  the  primary  rights  and  duties  of  individuals, 
permits  and  uses  (1)  the  remedies  which  the  common  law  and 
the  law  courts  contrived,  and  (2)  those  which  equity  and  the 
equity  courts  contrived.     There  is  no  interference,  no  conflict, 
among  them  ;    there  is  even  practically  no  superfluity,  for  the 
legal  remedies  which  are  identical  in  substance  with  the  equita- 
ble ones  appropriate  to  the  same    circumstances   have   become 
obsolete,  and  exist  only  in  theory.     This  system  of  remedies  and 
remedial  rights  is  not  in  any  proper  sense  double  ;  it  is  single, 
uniform,  and  homogeneous,  as  far  as  homogeneity  is  practicable. 
The  most  that  can  be  said  is  that  under  certain  circumstances 
the  injured  party  has,  upon  the  same  state  of  facts,  an  election 
among  the  different  remedies  offered  him  for  his  complete  protec- 
tion.     Amid  the  infinite  diversity  of  facts,  circumstances,  and 
relations  which  can  occur  in  the  movements  of  modern  society, 
amid  the  endless  variety  of  primary  rights  which  must  spring  there- 
from, and  amid  the  countless  forms  which  delicts  or  violations  of 
duty  may  assume,  it  is  impossible  that  the  ultimate  remedies  and 
remedial  rights  should  be  reduced  to  any  few  and  well-defined 
classes.     Some  classification,  however,  is  possible,  since  it  is  pos- 
sible to  make   some   broad  divisions  of  primary  rights  and  of 
ordinary  delicts ;  and  the  law  long  ago  took  advantage  of  this 
possibility,  and  made  the  classification  as  simple  and  as  compre- 
hensive as  the  nature  and  condition  of  the  subject  then  per- 
mitted.     The   result  was   the   three   established  forms  of  relief 
which  have  been  known  as  legal:  the  judgment  for  the  recovery 
of  possession  of  land,  for  the  recover}'  of  possession  of  chattels, 
and  for  the  recovery  of  mone^^      Beyond  these  the  forms  and 
kinds  of  relief  must  of  necessity  be  special,  adapted  to  the  innu- 
merable varieties  of  facts,  circumstances,  and  relations.     Instead 
of  curtailing,  abridging,  or  abolishing  any  known  kinds  of  equita- 
ble remedy,  new  and  additional  ones  must,  from  time  to  time,  be 
invented  to  respond  to  new  wants,  facts,  and  relations.    No  legis- 
lation will  be  needed  to  effect  the  modifications  and  additions 


62  CIVIL   REMEDIES. 

which  may  become  necessary  in  the  progress  of  the  social  move- 
ment ;  for  the  courts  possess  the  inherent  power,  which  they 
have  had  and  used  from  the  earliest  period,  of  meeting  the 
new  wants  of  to-day  by  means  and  instruments  Avhich  had  only 
a  potential  existence  yesterday.  We  therefore,  through  this 
investigation  into  the  very  nature  of  law  and  of  equity  as  cor- 
relative parts  of  one  great  whole,  reach  the  conclusion,  that  a 
theory  or  pure  ideal  of  a  perfect  union  does  not  involve  or  admit 
the  abolition  of  any  equitable  rules  which  define  primary  rights 
and  duties,  nor  of  any  equitable  remedies  and  remedial  rights 
which  now  exist.  If  any  change  should  be  made  within  the 
domain  of  primary  rights  or  in  that  of  remedies,  it  would  con- 
sist in  abrogating  those  few  legal  rules  that  stand  in  opposition 
to  acknowledged  doctrines  of  equity,  and  those  few  legal  remedies 
and  remedial  processes  that  have  become  o])solete,  because  equity, 
under  the  same  circumstances,  furnishes  the  identical  relief  in  a 
simpler  and  more  efficacious  manner. 

§  56.  The  legislation  which  created  the  reformed  American 
system  of  procedure  is  in  exact  harmony  with  these  conclusions. 
Not  a  provision  is  to  be  found  in  the  code  of  any  state  adopting 
the  new  system  which  requires,  suggests,  or  even  intimates  an 
abrogation  of  equitable  primary  rights,  or  equitable  remedies  and 
remedial  rights  ;  nor,  in  fact,  can  a  provision  be  found  which  ex- 
pressly contemplates  an  absolute  unification  of  law  and  equity 
into  a  single  homogeneous  whole.  The  change  provided  for  is 
not  in  primary  rights  nor  in  remedies,  but  in  the  methods,  means, 
and  instruments  by  which  these  primary  rights  are  to  be  main- 
tained, and  these  remedies  secured.  Undoubtedly  a  removal  of 
all  distinction  between  these  external  means  and  instruments,  as 
it  must  produce  an  identity  of  remedial  methods,  will  tend  to 
obliterate  all  marks  of  distinction  between  the  two  great  depart- 
ments of  primary  rights  and  duties  which  are  called  equity  and 
law,  and  to  reduce  them  hi  time  to  a  condition  of  oneness ;  but 
this  result  is  an  indirect  though  natural  consequence  of  the  re- 
form legislation,  and  is  not  expressly  provided  for  by  the  legisla- 
tion itself.  The  most  explicit  and  positive  language  contained  in 
all  the  codes,  but  three,  is  the  following :  "  The  distinction  be- 
tween actions  at  law  and  suits  in  equity,  and  the  forms  of  all 
such  actions  and  suits  heretofore  existing,  are  abolished."  There 
is  plainly  no  suggestion  here  of  a  change  in  primary  rights  nor 


A   THEORETICAL   UNITY   IN   PROCEDURE.  63 

in  remedies.  "  Actions  "  and  "  suits  "  and  their  "  forms  "  are 
alone  spoken  of.  Nothing  is  said  even  of  a  union  between  law 
and  equity,  and  no  hint  is  given  of  an  alteration  in  the  essential 
features  of  either,  —  in  the  rights  and  duties  which  it  creates,  or 
the  remedies  which  it  confers.  It  is  a  misapprehension  not  only 
of  the  spirit  but  of  the  plain  letter  of  the  code  to  suppose  that  it 
affects  the  constitution  of  the  municipal  law,  or  goes  below  the 
external  forms  of  procedure,  the  judicial  machinery  l^y  which  the 
law  is  made  compulsive  in  the  enforcement  of  its  commands. 
There  is  thus  a  perfect  accord  between  the  actual  legislation  and 
the  theory  which  has  been  deduced  from  an  analysis  of  the  essen- 
tial notions  of  equity  and  of  law. 

§  57.  As  this  theory  does  not  contemplate  a  destruction  of 
existing  remedies,  nor  directly  propose  an  immediate  amalgama- 
tion of  the  two  correlative  departments  of  law  and  equity,  and 
as  it  is  confined  to  a  union  of  external  and  formal  methods, 
the  question  arises.  What  is  meant  by  such  a  union  of  external 
and  formal  methods  ?  How  far  is  it  possible,  while  retaining  the 
primary  rights  and  the  remedies  which  have  been  called  legal 
and  equitable,  to  break  down  and  destroy  all  distinctions  be- 
tween legal  and  equitable  actions,  and  to  construct  a  single  judi- 
cial instrument  for  the  prosecution  of  all  civil  remedial  rights  and 
the  procuring  of  all  civil  remedies  ?  It  is  my  purpose,  in  the 
remaining  portion  of  the  present  section,  to  give  a  purely  theo- 
retical answer  to  these  questions,  without  reference  to  the  terms 
of  the  positive  legislation  creating  the  reformed  system  of  pro- 
cedure. The  absolute  union  or  consolidation  of  external  methods 
which  is  spoken  of,  regarded  in  its  highest  or  ideal  perfection, 
involves  the  notion  of  a  single  action  by  which  to  administer  all 
remedies,  legal  or  equitable,  and  to  maintain  all  primary  rights, 
which  action  should  be  the  same  for  all  species  of  relief,  and 
under  all  possible  circumstances.  The  sameness  in  this  action, 
with  reference  to  the  proceedings  therein  and  especially  with 
reference  to  the  legal  or  equitable  remedies  it  is  designed  to  con- 
fer, may  consist  in  several  particulars,  which  I  shall  examine 
separately,  and  in  respect  to  each  of  which  shall  inquire  whether 
an  identity  of  method  is  possible. 

§  58.  (1)  There  may  be  the  perfect  sameness  in  the  manner 
of  commencing  the  action  under  all  circumstances,  whatever  be 
the  nature  of  the  remedy  sought  or  of  the  primary  right  main- 


64  CIVIL   REMEDIES. 

taiiied.  This  feature  of  identity  is  certainly  possible  ;  and  it  is, 
moreover,  very  easy  of  attainment.  That  the  mode  of  initiating 
the  proceedings,  the  forms  and  kinds  of  the  process,  may  be  the 
same  for  all  actions  and  for  all  remedies,  is  too  plain  to  require 
argument.  Each  of  the  codes  contemplates  at  least  this  feature 
of  identity,  and  no  practical  difficulty  is  found  in  carrying  out 
the  designs  of  the  legislature.  (2)  The  second  feature  of  same- 
ness may  be  in  the  method  of  stating  all  possible  causes  of  action 
and  of  defence  ;  that  is,  in  the  pleadings.  In  other  words,  the 
design  of  the  legislature  in  uniting  all  modes  of  procedure  may 
be  that,  whatever  be  the  remedy  invoked,  whatever  the  primary 
right  violated,  the  acts  and  facts  which  constitute  the  right  and 
the  breach  of  it  should  be  stated  in  the  same  manner  and  ac- 
cording to  the  same  princijjles.  Notwithstanding  the  conflict  of 
opinion  upon  this  particular  point  to  be  found  in  some  of  the 
judicial  decisions,  I  believe  that  the  feature  of  unity  here  de- 
scribed is  not  only  possible,  but  that  it  is  in  complete  accordance 
w4th  the  highest  and  most  scientific  theory  of  judicial  procedure. 
It  is  of  course  impossible  that  in  every  case,  legal  or  equitable, 
the  cause  of  action  or  defence  should  be  stated  in  exactly  the 
same  manner  and  form,  since  there  must  be  essential  differences 
among  causes  of  action  and  defences  which  no  legislation  can 
efface.  It  is  possible,  however,  that  all  causes  of  action  and  all 
defences  should  be  set  forth  in  accordance  with  the  same  prin- 
ciple. It  has  been  said  that  the  common- law  and  the  equity 
methods  of  pleading  were  very  unlike,  and  that  even  since  the 
codes  a  legal  action  must  necessarily  be  stated  in  pursuance  of 
the  former,  and  an  equitable  action  in  pursuance  of  the  latter 
mode.  Whatever  the  courts  may  have  decided,  this  proposition 
is  not  true  ;  no  such  necessity  exists.  A  single,  uniform  theory 
of  pleading  may  be  followed,  and  may  be  applied  to  every  possi- 
ble cause  of  action  and  defence.  The  common-law  pleading  did 
not  state  the  facts  exactl}'  as  the}^  occurred,  but  rather  the  con- 
clusions which  the  law  inferred  from  such  facts  ;  and  in  the  most 
frequent  of  all  actions  —  assumpsit  —  it  constantly  charged  upon 
the  defendant  the  making  of  promises  which  were  entirely  fic- 
titious. The  equity  system  stated  the  facts,  but  it  overlaid  them 
with  an  unnecessary  mass  of  evidence,  —  unnecessary,  I  mean,  as 
a  statement  of  the  cause  of  action  or  defence,  and  only  useful  as 
a  means  of  making  the  party  a  witness  in  the  cause  either  for  or 


A    THEORETICAL   UNITY   OF   PROCEDURE.  65 

against  himself;  and  it  used  an  al)undance  of  technical  forms 
which  had  lost  all  their  significance.  A  theory  of  pleading 
which,  in  all  cases  and  while  seeking  to  obtain  all  remedies, 
should  merely  state  the  facts  that  constitute  the  cause  of  action 
or  the  defence,  without  legal  inferences  and  without  minute  de- 
tail of  evidence,  would  be  the  same  in  principle,  however  simple 
or  however  complicated  the  cause  of  action  or  defence  might  be. 
This  would  be  at  once  the  most  practical  and  the  most  scientific 
method,  and  it  would  apply  to  every  conceivable  case.  If  the 
plaintiff  in  one  action  alleges  the  single  fact  of  a  sale  out  of 
which  the  defendant's  liability  arises,  but  does  not  aver  any 
promise  which  was  never  made,  the  principle  is  the  same  as  that 
which  in  another  action  requires  the  statement  of  the  affairs  of 
an  insolvent  partnership  involving  the  most  complicated  accounts 
and  marshalling  of  assets.  In  both  these  instances  the  pleader 
may  be  guided  by  the  same  theory,  however  unlike  the  result 
may  be  in  external  form  ;  for  the  unlikeness  exists  in  the  facts 
themselves,  and  not  in  the  manner  of  alleging  them.  It  is  possi- 
ble, therefore,  that  this  feature  of  unity  should  exist ;  that  in  all 
actions,  whatever  be  the  nature  of  the  primary  right  and  what- 
ever remedy  be  demanded,  the  causes  of  action  on  one  hand  and 
the  defences  on  the  other  may  be  stated  according  to  one  com- 
mon principle.  That  tliis  unity  was  contemplated  by  the  legis- 
latures which  adopted  the  new  system  is  very  plain,  because  the 
language  of  the  statute  admits  of  but  one  meaning  and  is  peremp- 
tory :  that  the  spirit  as  well  as  the  letter  even  have  often  been 
disregarded  by  the  judges  in  the  actual  interpretation  wliich  they 
have  given  is  equally  plain.  I  pass  this  most  important  subject 
with  no  more  present  discussion,  but  shall  return  to  it  in  a  future 
chapter. 

§  59.  (3)  The  third  feature  of  unity  or  identity  of  method 
would  be  an  absolute  sameness  in  the  manner  of  conducting  the 
trial,  whatever  be  the  nature  or  object  of  the  action,  whatever  be 
the  primary  right  invaded,  or  the  remedy  sought  to  be  obtained. 
This  general  sameness  in  the  trial,  if  carried  to  the  highest  degree, 
would  necessarily  embrace  the  following  subordinate  particulars  : 
namely,  that  the  trial  should  be  held  in  the  one  court  or  class  of 
courts  having  jurisdiction  to  award  all  species  of  remedies  ;  that 
the  facts  should  be  brought  before  the  tribunal  in  the  same  man- 
ner, or,  in  other   words,  the  mode  of  introducing  the  evidence 

5 


66  CIVIL    REMEDIES. 

should  be  the  same,  eitlier  by  oral  testimony  or  b}^  depositions, 
and  the  same  rules  should  govern  its  admissibility;  that  the  deci- 
sion of  the  issues,  whether  of  fact  or  of  law,  should  be  made  by 
the  same  tribunal,  announced  in  the  same  manner,  and  have  the 
same  effect.  An  identity  in  modes  of  trial  plainly  includes  the 
foregoing  special  features,  and  beyond  a  doubt  such  an  identity 
is  in  the  nature  of  things  possible.  It  is  not  only  practicable,  but 
it  is  the  most  natural  and  logical  order  of  administration  that  all 
judicial  controversies  should  be  tried  by  a  single  court  or  class 
of  courts,  and  that  the  witnesses  should  be  examined  and  the 
evidence  introduced  in  pursuance  of  one  common  mode.  This  has 
been  done  in  New  York  since  1848,  with  respect  to  the  common- 
law  and  the  equity  tribunals,  and  in  the  other  States  which  have 
adopted  the  American  system  ;  and  England  has  even  gone  much 
farther,  and  has  provided  for  the  consolidation  of  all  the  higher 
tribunals  —  those  which  had  special  jurisdiction  as  well  as  those 
which  had  general  —  into  one  Supreme  Court  for  the  transaction 
of  every  sjjecies  of  judicial  business,  and  has  provided  that  one 
form  of  proceeding,  one  action,  shall  be  used  in  all  controver- 
sies and  processes  for  obtaining  remedies,  whether  legal,  equita- 
ble, in  admiralty,  in  bankruptcy,  probate,  or  divorce.  It  is  also 
practicable,  in  the  nature  of  things,  that  all  issues,  either  of  law 
or  of  fact,  in  every  kind  of  action,  legal  or  equitable,  should  be 
decided  by  the  same  tribunal  in  the  same  form  and  with  the  same 
effect.  This  tribunal,  however,  could  not  be  the  jury.  There 
are  controversies  utterly  beyond  its  competency.  By  abolishing 
the  jury  trial  in  civil  causes,  and  by  constituting  all  courts  upon 
the  model  of  the  Court  of  Chancery,  with  one  or  more  judges  to 
determine  all  the  matters  in  dispute,  the  theoretic  identity  in  the 
mode  of  trial  would  be  readily  attained.  While  this  unity  is 
thus  possible,  it  is  only  possible  by  abandoning  an  institution 
which  may  be  regarded  as  an  essential  element  of  Saxon  civiliza- 
tion. As  long  as  the  jury  trial  lasts  in  civil  causes,  as  long  as 
actions  based  upon  the  violation  of  certain  primary  rights  and 
seeking  certain  remedies,  must  be  decided  by  a  dual  court  con- 
sisting of  judge  and  jury,  while  all  other  actions  must  or  may  be 
decided  by  a  court  consisting  of  a  judge  only,  an  absolute  identity 
in  the  mode  of  trial  is  plainly  impracticable  ;  and  this  difference 
is  so  important,  so  vital,  that  it  extends  through  the  whole  frame- 
work of  actions,  and  separates  them  into  two  distinctive  classes, 


A  THEORETICAL  UNITY  OF  PROCEDURE.  67 

notwithstanding  the  positive  and  sweeping  Language  of  the  stat- 
ute, which  purports  to  abolish  all  distinctions  and  forms,  and  to  pre- 
scribe one  uniform  mode  or  instrument  for  the  procurement  of  all 
remedies.  The  jury  trial,  which  in  most  of  the  States  is  guarded 
against  hostile  legislation  by  the  restraints  of  the  constitutions,  is, 
therefore,  a  physical  obstacle  in  the  way  of  a  perfect  theory  of 
unity  in  legal  and  equitable  methods,  and  will  continue  to  be  so 
until  the  people  cease  to  believe  in  the  formulas  of  words  that 
have  been  repeated  from  generation  to  generation  as  arguments 
in  support  of  the  institution. 

§  60.  (4)  A  fourth  feature  of  identity  in  external  methods  would 
be  the  adoption  of  the  same  rules  as  to  parties  and  their  applica- 
tion to  all  actions,  whatever  be  the  rights  which  they  redress  or 
the  remedies  which  they  pursue.  This  particular  element  of  a 
comprehensive  unity  is  certainly  possible ;  but  it  would  require  a 
complete  change  in  certain  legal  notions  as  to  rights  and  liabilities 
which  are  as  old  as  the  common  law  itself.  To  illustrate :  the 
common  law  does  not  consider  it  possible  for  two  or  more  persons 
to  be  united  as  plaintiffs  in  the  same  action  upon  a  contract,  un- 
less they  are  all  for  the  purposes  of  that  action  equally  united  in 
interest,  unless  the  benefit  of  the  contract  belongs  to  them  as  a 
unit,  and  unless  the  right  in  them  was  created  at  the  same  time 
and  by  the  same  act.  When  they  are  thus  united,  "jointly 
interested,"  the  law  requires  that  all  of  them  be  made  plaintiffs. 
On  the  other  hand,  the  law  does  not  admit  the  possibility  of  two 
or  more  persons  being  proceeded  against  as  defendants  in  one 
action  upon  contract,  unless  each  is  liable  for  the  whole  claim, 
unless  this  liability  rests  upon  them  all  as  a  legal  unit,  and  unless 
it  was  created  at  the  same  time  by  one  and  the  same  act  or 
instrument.  The  common  law  knows  nothing  of  defendants 
against  whom  a  judgment  for  the  entire  amount  of  debt  or  dam- 
ages is  not  to  be  rendered,  nor  of  defendants  who  became  liable 
at  different  times  and  upon  separate  instruments.  The  power  to 
sue  the  makers  and  the  indorsers  of  a  note  or  bill  in  one  action 
did  not  exist  at  the  common  law,  but  was  created  by  statute. 
The  rules  of  equity  procedure  are  in  every  way  different  from 
these  legal  doctrines.  Persons  are  constantly  made  defendants 
against  whom  a  partial  or  perhaps  no  relief  is  asked  or  granted, 
and  even  defendants  are  not  unfrequently  entitled  to  relief  as 
against  each  other,  or  as  against  the  plaintiffs,  or  some  of  them. 


68  CIVIL    REMEDIES. 

The  same  is  to  a  certain  extent  true  of  plaintiffs.  In  short,  the 
legal  notion  of  a  necessary  unity  in  the  rights  of  the  plaintiffs  or 
in  the  liabilities  of  the  defendants  is  unknown  in  equity.  Persons 
are  made  parties  because  they  have  some  perhaps  remote  interest 
in  the  controversy,  and  it  is  expedient  to  bind  them  by  the  decree. 
It  is  undoubtedly  possible  to  extend  these  general  principles  as  to 
parties,  so  that  they  may  be  applied  to  all  actions,  legal  as  well  as 
equitable ;  but,  as  already  stated,  the  technical  notions  above 
described  of  joint  rights  and  liabilities  must  be  abandoned,  and  the 
equitable  conceptions  must  tiike  their  place.  This  revolution  seems 
to  have  been  accomplished  in  several  of  the  Western  States,  whose 
legislation  in  this  respect  has  gone  much  further  than  that  of  the 
New  York  code.  A  single  example  will  be  sufficient.  When  a 
thing  in  action,  not  being  negotiable,  is  assigned,  and  the  assignee 
brings  an  action  upon  it,  he  is  required  by  the  provisions  of  cer- 
tain State  codes  to  make  the  assignor  a  party  defendant  in  order, 
in  the  language  of  the  statute,  "  to  answer  to  the  assignment." 
No  judgment  is  asked  or  granted  against  this  additional  defend- 
ant, and  the  whole  proceeding  is  opposed  to  common-law  notions, 
but  is,  nevertheless,  eminently  equitable,  sensible,  and  just.  In 
an  action  between  the  alleged  assignee  and  the  debtor  alone,  the 
assignor  would  not  be  in  the  least  degree  bound  by  the  judg- 
ment ;  the  debtor  might,  therefore,  be  exposed  to  a  second  suit 
brought  by  the  assignor  himself,  and  to  a  second  recovery  therein 
if  the  pretended  assignment  were  disproved.  The  provision 
of  the  statute  requiring  the  assignor  to  be  made  a  party  to  the 
proceeding,  so  that  he  may  contest  the  assignment,  and  be  con- 
cluded by  the  decision,  is  admirable  every  way,  and  an  easy  adap- 
tation of  equitable  doctrines  to  common-law  actions. 

§  61.  While  this  theoretic  unity  in  respect  to  the  parties  is 
thus  practicable  and  easy  to  be  obtained  if  the  bench  and  the 
bar  would  forget  some  technical  rules  of  the  common  law 
which  never  had  any  foundation  in  the  truth,  yet  the  theory 
has  not  been  fully  carried  out  into  practice  in  all  the  .State 
codes.  In  New  York,  and  in  those  States  whicli  have  exactly 
copied  its  legislation,  the  ancient  legal  conceptions  as  to  par- 
ties and  joint  rights  and  liabilities  are  not  so  expressly  abol- 
ished as  to  produce  the  perfected  result  which,  perhaps,  the 
codifiers  themselves  designed.  The  experience  of  the  Western 
States,   to    which    reference   has  been   made,    demonstrates    the 


A   THEORETICAL   UNITY   IN    PROCEDURE.  69 

perfect  ease  with  which  the  change  can  be  made ;  and  the  equi- 
table rules  as  to  severance  in  the  judgment,  and  among  parties 
jointly  interested,  can  be  extended  to  all  legal  actions.  In  short, 
these  ancient  rules  of  the  common  law  were  supported  by  no 
reasons,  either  of  principle  or  of  expediency  ;  the  so-called  argu- 
ments in  their  favor  were,  like  so  much  of  the  old  technical  legal 
reasoning,  a  mere  repetition  of  words  having  no  basis  of  fact 
upon  which  to  rest.  Where  a  right  is  held  by  two  or  more,  there 
is  no  real  difficulty  in  the  way  of  permitting  one  or  some  of  them 
to  sue  ;  when  a  liability  is  imposed  upon  two  or  more,  there  is  no 
real  difficulty  in  the  way  of  permitting  one  or  some  to  be  sued  ; 
and  in  either  case  the  rights  of  all  parties  can  be  easily  protected, 
so  that  the  creditor  shall  in  no  instance  receive  but  one  satisfac- 
tion, or  the  debtor  be  compelled  to  pay  the  demand  a  second 
time. 

§  62.  (5)  It  might  appear  that  a  fifth  feature  of  the  theoreti- 
cal identity  in  judicial  methods  would  be  the  reducing  of  all 
judgments  to  one  single  form,  or  to  certain  classes  of  forms,  in 
all  actions,  whatever  be  the  nature  of  the  primary  right  or  of  the 
delict  by  Avhich  it  is  violated.  There  is,  however,  no  such  ele- 
ment of  identity  possible,  nor  is  it  involved  in  the  theory  of  an 
absolute  unification  of  legal  and  equitable  modes  of  proceeding. 
The  judgment  is  the  official  statement  and  award  of  the  remedy 
which  the  law  confers  in  the  particular  case.  All  judgments 
could  not  be  assimilated  and  reduced  to  a  single  form,  or  even  to 
a  few  clearly  defined  classes,  without  destroying  the  diversity  in 
the  remedies  themselves,  and  reducing  them  to  a  single  kind,  or 
to  the  prescribed  classes ;  and  this,  as  we  have  seen,  is  not  con- 
templated by  any  theory  of  reform  in  judicial  methods.  The 
various  steps  and  processes  leading  up  to  the  judgment  may  be 
made  the  same  in  all  cases ;  but  the  judgments  themselves,  con- 
taining as  they  do  the  very  final  remedies  which  are  the  objects 
of  all  judicial  controversies,  must  be  as  different  in  form  and 
substance  as  the  remedies  themselves. 

§  63.  If  we  pass,  however,  from  this  essential  character  and 
substance  of  the  judgment  to  its  incidentals,  rules  in  relation  to 
its  mode  of  rendition  may  be  adopted  and  applied  to  all  actions, 
and  thus  all  the  identity  of  which  the  subject  is  capable  may  be 
produced.  The  rules  which  regulate  the  subjects  of  joint 
recovery  and  liability,  and  the  severance  in  the  recovery  or  lia- 


70  CIVIL   REMEDIES. 

bility  among  the  parties,  which  prescribe  the  relations  between 
the  recovery  and  the  existence  of  proper  parties  to  the  action, 
which  define  the  instances  in  which  affirmative  relief  may  be 
granted  to  the  defendants  or  to  a  portion  of  them,  and  those  in 
which  like  relief  may  be  obtained  by  plaintiffs  against  other 
plaintiffs,  or  by  defendants  against  other  defendants, — in  short, 
all  the  rules  which  are  concerned  with  the  external  form  and 
manner  of  rendering  the  judgment  and  of  giving  it  an  official 
character  and  compulsive  efficacy  upon  persons  and  things,  can 
readily  be  made  uniform  in  their  application  to  all  actions,  what- 
ever be  the  nature  of  the  primary  right  or  of  the  remedy  con- 
ferred. The  ancient  doctrines  of  the  common  law  which  controlled 
the  relations  of  judgments  with  the  parties  to  the  record,  and 
which  often  prevented  any  determination  of  the  actual  rights  and 
duties  of  the  litigants  as  among  themselves,  were  arbitrary  and 
technical  to  the  last  degree  ;  they  were  sustained  by  no  reasoning 
based  upon  the  nature  of  the  subject-matter,  but  were  the  results 
of  a  legal  habit  of  mind  which  delighted  in  logical  word-chopping, 
and  preferred  to  rest  the  decision  of  judicial  controversies  upon 
refined  distinctions  in  which  there  was  nothing  distinguished 
rather  than  upon  considerations  of  substantial  justice.  In  pro- 
ducing the  uniformity  of  regulation  which  I  have  described,  the 
principles  and  doctrines  of  equity  must  be  substituted  in  place  of 
the  technical  rules  of  the  common  law.  That  tliis  change  is 
practicable  and  easy  has  been  demonstrated  by  the  experience  of 
those  States  which  have  carried  out  the  theory  of  the  reformed 
American  system  of  procedure  to  its  logical  results.  There  can 
be  no  doubt  that  the  framers  of  the  New  York  code  accepted 
this  theory,  in  a  general  manner,  as  correct ;  and  I  think  they 
intended  to  construct  their  procedure  in  reference  to  parties 
and  judgments  upon  it,  to  the  exclusion  of  the  common-law 
notions  in  respect  to  the  same  subjects  from  all  classes  of  actions. 
How  far  they  succeeded  in  expressing  those  general  intentions  by 
means  of  the  particular  provisions  of  the  statute,  and  how  far 
the  courts  have  gone  in  developing  the  thought  of  the  law-mak- 
ers by  their  judicial  construction,  will  be  considered  in  subsequent 
chapters. 

§  64.  I  have  in  the  foregoing  analysis  examined  and  stated  the 
ideal  of  an  absolute  unity  in  judicial  methods  for  the  enforcement 
of  civil  rights  and  duties  and  the  procuring  of  civil  remedies  ; 


A   THEORETICAL   UNITY    IN    PROCEDURE.  71 

what  such  a  theory  involves  ;  what  features  or  elements  are  pos- 
sible, and  what  impossible.  The  conclusions  thus  reached  may  be 
summed  up  in  the  following  propositions.  The  theory  of  an 
absolute  union  does  not  affect  the  primary  civil  rights  and  duties, 
nor  the  final  remedies  and  the  rights  thereto  ;  it  leaves  the  pri- 
mary rights  called  legal  and  those  called  equitable,  and  the  reliefs 
bestowed  for  their  violation,  substantially  untouched.  It  is  con- 
fined, therefore,  to  the  judicial  methods  by  which  these  remedies 
are  to  be  obtained.  An  absolute  unity  in  these  methods,  by  means 
of  a  single  form  of  civil  action  adapted  to  the  enforcement  of  all 
civil  rights  and  the  recovery  of  all  civil  remedies,  is  theoretically 
possible.  Such  an  absolute  unity  is,  however,  practically  impos- 
sible so  long  as  the  jury  trial  is  required  in  certain  classes  of 
causes,  and  is  dispensed  with  in  others,  since  that  institution 
creates  an  essential  difference  in  the  manner  of  conductinof 
actions,  and  in  their  very  framework,  which  cannot  be  obliter- 
ated by  any  statutory  declaration.  In  respect  to  all  other  features 
and  elements  of  an  action,  —  that  is,  except  so  far  as  the  jury  trial 
produces  a  modification,  —  the  theoretical  identity  in  all  judicial 
proceedings  is  practicable,  and  may  consist  in  the  mode  of  com- 
mencing the  action,  in  the  method  of  stating  the  cause  of  action 
or  the  defence,  in  the  manner  of  establishing  the  facts  by  evi- 
dence, in  the  rules  relating  to  parties,  and  in  those  relating  to  the 
awarding  of  relief  and  the  rendition  of  judgment.  Having  thus 
exhibited  a  complete  theory  or  pure  ideal  of  such  a  unit}^  in 
methods  as  would  remove  all  distinctions  and  create  but  one  judi- 
cial instrument  for  the  protection  of  all  civil  rights  and  the  pur- 
suit of  all  civil  remedies,  I  shall  next  inquire  how  far  this  perfect 
theoiy  has  been  worked  out  by  the  legislatures,  and  especially  by 
the  courts  in  their  interpretation  of  the  statutes  which  have 
established  the  reformed  American  system  of  procedure  in  the 
various  States. 

SECTION    SECOND. 

The  General  Principles  as  to  a  Union  of  Legal  and  Equitable  Methods  which  have 
been  adopted  by  the  Courts ;  liow  far  such  a  Union  lias  been  practically  effected 
by  Judicial  Interpretation  of  the  Statutes. 

§  65.  It  is  not  my  purpose  in  the  present  section  to  discuss  in 
order  the  particular  practical  questions  that  have  arisen  in  the 


72  CIVIL    REMEDIES. 

construction  of  those  provisions  of  the  State  codes  of  proced- 
ure and  practice  acts  which  abolish  the  distinction  between 
legal  and  equitable  actions ;  namely,  the  combining  of  legal  and 
equitable  causes  of  action  and  defence  in  the  same  suit,  the  in- 
terposing of  equitable  defences  to  legal  causes  of  action,  the 
granting  of  legal  remedies  where  the  pleadings  had  contemplated 
equitable  ones,  or  of  equitable  remedies  where  the  pleadings  had 
contemplated  legal  ones,  and  the  like.  I  intend  rather  to  ascer- 
tain, if  possible,  and  state  the  general  principles  of  consti'uction 
which  the  courts  have  finally  adopted  and  applied  in  the  settle- 
ment of  these  and  all  other  similar  questions  which  have  arisen 
from  this  most  distinctive  and  important  feature  of  the  reformed 
procedure.  These  principles  are  fundamental ;  they  underlie  the 
whole  process  of  judicial  interpretation ;  they  shape  the  entire 
action  of  the  courts  in  building  up  a  system  of  practical  rules 
out  of  the  broad  and  somewhat  vague  enactments  of  the  statute. 
A  knowledge  of  these  controlling  motives  and  opinions  which 
have  guided  the  judges  in  their  work  of  construction  is  of  the 
highest  importance  ;  with  it  we  may  attain  a  systematic  and  har- 
monious result ;  without  it  we  shall  certainly  be  left  in  a  chaos  of 
conflicting  decisions.  In  pursuing  this  inquiry,  I  shall  follow  the 
order  developed  in  the  jDreceding  section,  and  shall  ascertain  how 
far  the  interpretation  given  by  the  courts  conforms  to,  and  how 
far  differs  from,  the  theory  of  absolute  unity  therein  set  forth. 

§  G6.  The  adoption  of  the  Code  of  Procedure  by  the  Legisla- 
ture of  New  York  in  1848  was  undoubtedly  a  shock  to  the  opin- 
ions and  prejudices  of  law3^ers  who  had  been  accustomed  to 
regard  the  former  system  as  perfect  in  principle  ;  and,  while  it 
met  with  a  strenuous  opposition  from  many  members  of  the 
bar,  it  is  not  surprising  that  some  of  the  judges  also  for  a  time 
found  it  difficult,  if  not  impossible,  to  yield  obedience  to  the 
letter  even  of  the  statutory  requirement,  much  less  to  accept 
its  spirit  with  zealous  approval.  Opinions  are  to  be  found,  de- 
livered at  an  early  day  by  very  eminent  and  able  judges,  some- 
times sitting  in  the  court  of  last  resort,  which,  if  taken  as  correct 
expositions  of  the  statute,  would  have  reduced  the  great  reform 
to  the  empty  change  in  a  few  words  ;  the  ancient  names  would 
have  been  abolished,  but  all  the  substance,  all  that  was  repre- 
sented by  those  names,  would  have  remained  in  full  force  and 
effect.     Accordino-   to   this  view  there  had   been   no    union   of 


GENERAL   NATURE   OF   THE   CIVIL   ACTION. 


73 


methods  into  one  common  mode  of  proceeding,  no  abolition  of 
any  real  distinctions  between  legal  and  equitable  actions,  because 
such    a   result   is  simply  impossible  of  attainment.^     Since    the 


1  See  Eeubens  v.  Joel,  13  N.  Y.  488, 
493,  and  Voorliis  v.  Child's  Ex'ors,  17 
N.  Y.  354,  857-362,  per  S.  L.  Selden  J. 
As  these  opinions  of  Mr.  Justice  Selden 
furnish  the  clearest  and  ablest  statement 
of  the  peculiar  theory  of  interpretation 
mentioned  in  the  text,  I  quote  from  them 
at  some  length.  In  Reubens  v.  Joel,  he 
says,  p.  493  :  "  What  are  the  distinctions 
between  actions  at  law  and  suits  in 
equity  1  The  most  marked  distinction 
obviously  consists  in  their  different  modes 
of  relief.  In  the  one,  with  a  few  isolated 
exceptions,  relief  is  invariably  adminis- 
tered, and  can  only  be  administered,  in 
the  form  of  a  pecuniary  compensation  in 
damages  for  the  injury  received  ;  in  the 
other  the  court  has  a  discretionary  power 
to  adapt  the  relief  to  the  circumstances 
of  the  case.  By  what  process  can  these 
two  modes  of  relief  be  made  identical  1 
It  is  possible  to  abolish  one  or  the  other, 
or  both  ;  but  it  certainly  is  not  possible 
to  abolish  the  distinction  between  them. 
The  legislature  may,  unless  prohibited 
by  the  constitution,  enact  that  no  court 
shall  hereafter  have  power  to  grant  any 
relief  except  in  the  form  of  damages,  and 
thereby  abolish  suits  in  equity,  or  that 
all  courts  shall  have  power  to  mould  the 
relief  to  suit  the  particular  case,  and 
thereby  virtually  abolish  actions  at  law 
as  a  distinct  class.  To  illustrate  by  a 
single  case :  they  may  provide  that  when 
the  vendor  of  land  who  has  contracted  to 
sell,  and  has  received  the  purchase-money, 
refuses  to  convey,  the  vendee  shall  have 
no  remedy  but  an  action  for  damages,  or, 
on  the  other  hand,  that  he  shall  be  con- 
fined to  a  suit  for  specific  performance ; 
but  it  is  clearly  beyond  the  reach  of  their 
powers  to  make  these  two  remedies  the 
same.  Another  leading  distinction  be- 
tween common-law  actions  and  suits  in 
equity  consists  in  their  different  modes  of 
trial.  The  former  are  to  be  tried  by  a 
jury,  the  latter  by  the  court.  Can  the 
legislature  abolish  this  distinction  1  They 
might,  but  for  the  restraints  of  the  con- 
stitution, abolish  either  kind  of  trial,  or 
reclassify  the  classes  to  which  they  apply ; 


but  they  cannot  make  trial  by  jury  and 
trial  by  the  court  the  same  tiling.  It  is 
plain  that  the  only  way  in  which  the  dec- 
laration contained  in  §  69  can  be  made 
good,  is  by  abolishing  both  the  forms  of 
trial  and  the  mode  of  relief  in  one  or  the 
other  of  the  two  classes  of  actions.  When 
this  is  done,  and  not  until  then,  shall  we 
have  one  homogeneous  form  of  action  for 
all  cases.  Has  the  legislature  power  to 
do  this  ?  [He  here  cites  certain  clauses  of 
the  New  York  Constitution  recognizing 
the  existence  of  equity.]  Will  it  be  con- 
tended, in  the  face  of  these  provisions,  that 
the  legislature  has  the  power  to  abolish  the 
jurisdiction  of  the  courts  either  at  law  or 
in  equity  ?  The  constitution  gives  to  the 
Supreme  Court  general  jurisdiction  both 
in  law  and  in  equity.  Can  this  be  taken 
away  1  It  authorizes  the  legislature  to 
"alter  and  regulate"  both  jurisdictions. 
Does  this  mean  that  it  may  abrogate 
them  ?  It  is,  in  my  judgment,  clear  that 
the  legislature  has  not  the  constitutional 
power  to  reduce  all  actions  to  one  ho- 
mogeneous form  ;  because  it  could  only 
be  done  by  abolishing  trial  by  jury,  with 
its  inseparable  accompaniment,  compen- 
sation in  damages,  which  would  not  only 
conflict  with  the  provisions  that  preserve 
trial  by  jury,  but  would  in  effect  subvert 
all  jurisdiction  at  law,  as  all  actions  would 
thereby  be  rendered  equitable ;  or  by 
abolishing  trial  by  the  court,  with  its  ap- 
propriate incident,  specific  relief,  which 
would  destroy  all  equity  jurisdiction,  and 
convert  every  suit  into  an  action  at  law." 
...  p.  498.  "  But  the  legislature,  in  the 
specific  provisions  adopted  by  it,  has  not 
attempted  to  carry  into  effect  the  general 
declaration  made  in  §  69."  He  cites  §§  253, 
254,  which  require  the  jury  trial  in  all 
actions  in  which  it  had  heretofore  been 
used,  and  provide  a  trial  by  the  court  for 
all  other  actions,  and  §§  275,  276,  which 
regulate  the  relief  to  be  granted,  and  pro- 
ceeds :  "  Instead  of  being  abolished,  the 
essential  distinctions  between  actions  at 
law  and  suits  in  equity  are  by  these  sec- 
tions expressly  retained.  Actions  at  law 
are  to  be  tried  by  a  jury,  suits  in  equity 


74 


CIVIL   REMEDIES, 


New  York  Constitution  provides  that  the  Supreme  Court  of  that 
State  shall  have  general  jurisdiction  in  law  and  equity,  and 
speaks  in  one  or  two  other  places  of  "  equity,"  it  has  been  said 
from  the  bench  tliat  a  statute  abolishing  the  distinctive  features 
of  equity  would  be  unconstitutional,  and  that  the  New  York 
code,  so  far  as  it  purports  to  produce  that  effect,  is  void.^  The 
system  which  this  school  of  judges  has  constructed  out  of  the 
reformatory  legislation  is  the  following.^     The  distinctions   be- 


by  the  court.  Damages  are  to  be  given 
as  heretofore  in  the  former,  and  specific 
relief  in  the  hitter." 

1  Selden  J.,  in  Reubens  v.  Joel,  13 
N.  Y.  4U4,  495. 

'-  Selden  J.,  in  Reubens  v.  Joel  and 
Voorhis  v.  Child's  Ex'ors,  iibi  sitp.  The 
latter  case  was  an  action  against  the  sur- 
viving members  of  a  partnership  and  the 
executors  of  a  deceased  member  to  re- 
cover the  amount  of  a  promissory  note 
made  by  the  firm.  The  complaint  was 
in  the  usual  form  ;  it  contained  no  allega- 
tion that  the  survivors  were  insolvent  or 
that  judgment  had  been  recovered  against 
them,  and  prayed  the  usual  judgment  for 
the  amount  of  the  debt.  On  demurrer  by 
the  executors,  on  the  ground  that  no  cause 
of  action  was  stated  against  them,  the 
complaint  was  dismissed,  and  the  plaintiff 
appealed.  The  Court  of  Appeals  placed 
their  decision  upon  the  ground  that  an 
equity  action  could  not  be  maintained 
against  the  personal  representatives  of  a 
deceased  partner  to  recover  a  firm  debt 
without  averring  and  proving  that  the 
survivors  had  been  proceeded  against  at 
law  to  execution,  or  that  they  were  in- 
solvent, and  that  this  rule  had  not  been 
changed  by  the  code.  Mr.  Justice  Selden, 
while  agreeing  witli  this  position,  went  far 
beyond  it.  The  plaintiff  insisted  that  the 
action  was  legal  against  the  survivors,  and 
that  the  executors  were  proper  parties  de- 
fendant under  §  118,  which  provides  that 
"  any  person  may  be  made  a  defendant 
who  has  or  claims  an  interest  in  the  con- 
troversy adverse  to  the  plaintiff,  or  who  is 
a  necessary  party  to  a  complete  determina- 
tion or  settlement  of  the  questions  involved 
therein."  The  learned  judge  answers  that 
altliough  the  language  of  this  section  is 
broad  enough  to  cover  both  legal  and 
equitable  actions,  yet  it  is  a  mere  stat- 


utory enactment  of  the  rule  which  had 
always  prevailed  in  equity,  and  must, 
from  the  nature  of  the  actions,  of  the 
tribunals  which  pass  upon  the  issues,  and 
of  the  judgments  rendered,  be  confined  to 
suits  in  equity,  leaving  actions  at  law  to 
be  governed  by  the  same  rules  in  respect 
of  parties  which  prevailed  before  the  code. 
He  says  (p.  358) :  "  It  is  supposed  by  some 
that  it  was  intended  to  abolish  by  the  code 
all  distinctions,  not  only  in  form,  but  in 
substance,  between  legal  and  equitable  ac- 
tions ;  and  it  must  be  conceded  that  many 
of  its  provisions  taken  by  themselves  might 
seem  to  indicate  such  an  intent ;  and  yet 
nothing  can  be  clearer  than  that  the  legis- 
lature has  wholly  ftiiled  to  carry  into  effect 
such  an  intention  if  it  existed.  On  the 
contrary,  the  code  expressly  retains  the 
principal  differences  which  distinguish 
the  two  classes  of  actions.  Actions  at 
law  were  to  be  tried  by  a  jury,  suits  in 
equity  by  the  court.  This  distinction  re- 
mains undisturbed.  .  .  .  Now  it  is  plain 
that,  if  we  would  make  of  the  code  a  con- 
sistent system,  we  must  construe  it,  not  in 
view  of  tlie  general  proposition,  obviously 
untrue,  that  the  distinctions  between  ac- 
tions at  law  and  suits  in  equity  are  abol- 
ished, but  in  the  light  afforded  by  a 
comparison  of  its  various  provisions." 
He  proceeds  to  point  out  the  practical 
difficulties  in  the  way  of  applying  the 
equitable  doctrine  as  to  parties  to  all 
common-law  actions,  and  reaches  the  con- 
clusion that,  as  the  code  recognizes  equity 
suits  and  legal  actions,  the  provisions  of 
§  118  must  be  limited  to  suits  in  equity, 
and  adds  (p.  3G1):  'It  is  worthy  of  re- 
mark that  the  construction  here  con- 
tended for  is  that  which  has  been  of 
necessity  to  a  very  great  extent  practi- 
cally put  upon  the  various  provisions  of 
the  code.     Cases  are  found  so  naturally 


GENERAL   NATQRE   OF   THE   CIVIL    ACTION.  75 

tween  law  and  equity  inhere  in  the  very  nature  of  the  subject, 
and  cannot  be  abolished.  The  legislature  may,  unless  restrained 
by  the  constitution,  abrogate  the  law  or  equity,  but  cannot  de- 
stroy the  distinctions  between  them.  The  language  of  the  stat- 
ute, however,  is  not  broad  enough  to  effect  such  a  change  ;  it  is 
confined  to  external  acts  and  forms,  to  the  methods  of  obtaining 
remedies,  to  the  incidents  of  actions,  and  not  to  their  substance. 
Even  when  thus  restrained,  there  are  necessary  elements  in  the 
subject-matter  which  cannot  be  affected  by  legislation,  and  which 
limit  therefore  the  general  phrases  of  the  code.  Assuming  that 
primary  legal  and  equitable  rights  and  duties  remain  unaltered, 
essential  differences  must  exist  in  the  actions  brought  to  enforce 
the  legal  and  the  equitable  classes  of  rights,  and  also  the  various 
species  of  legal  rights.  For  this  reason  the  substantial  features 
and  characteristics  of  the  various  actions  at  law  must  and  do 
subsist,  and  the  rules  which  are  based  upon  these  facts  must  and 
do  continue  in  operation.  The  names  "  covenant,"  "  debt," 
"trespass,"  "assumpsit,"  "bill  in  equity,"  and  the  like,  have 
been  abandoned ;  but  all  the  things  which  these  names  repre- 
sented are  left  in  their  essentials  exactly  as  before  the  attempted 
reforms.  This  theory  of  interpretation  reduces  the  Code  of  Pro- 
cedure from  its  position  as  the  embodiment  of  a  new  system  for 
the  administration  of  justice  to  the  level  of  a  mere  amendatory 
act  regulating  the  minor  details  of  practice.  The  explanation 
here  made  of  it  is  now  useful  only  as  a  matter  of  history  ;  it  never 
became  controlling ;  the  opinions  which  it  represents  were  those 
of  individual  judges  rather  than  of  courts,  and  they  have  been 
repeatedly  and  completely  overruled  by  tribunals  of  the  highest 
authority.  1 

to  arrange  themselves  according  to  the  having  general  jurisdiction  in  law  and 
classification  which  existed  prior  to  the  equity  '  presents  an  insuperable  barrier 
code  that  the  distinction  between  legal  to  any  legislative  merger  of  the  jurisdic- 
and  equitable  actions  is  nearly  as  marked  tions."  In  accordance  with  this  theory, 
upon  all  the  papers  presented  to  the  court  the  same  learned  judge  in  various  other 
as  formerly.  The  same  names  are  not  cases  held  that  tlie  legal  and  equitable 
used,  but  the  nature  of  the  cases  has  not  actions  are  still  to  be  distinguished  in 
changed,  nor  have  the  distinctions  been  their  modes  of  pleading,  in  tlie  rules  as  to 
abrogated.  Very  few  attempts  have  been  parties,  and  in  tliose  respecting  the  rendi- 
made  to  carry  into  practical  effect  the  idea  tion  of  judgment.  In  short,  he  would 
of  blending  legal  and  equitable  causes  of  preserve  all  the  substance  of  the  two 
action  in  one  common  proceeding.  Were  classes,  and  only  give  up  the  names. 
it  necessary  to  the  decision  of  this  case,  I  i  See  tlie  comments  upon  Mr.  Justice 
should  be  prepared  to  hold  that  that  Selden's  opinion  in  Reubens  v.  Joel,  made 
clause  of  the  constitution  which  provides  by  Comstock  J.,  in  N.  Y.  Ice  Co.  v.  North- 
that  '  there  shall  be   a   Supreme  Court  west.  Ins.  Co.,  23  N.  Y.  359,  360. 


76  CIVIL   REMEDIES. 

§  67.  This  protest  against  the  changes  in  the  time-honored 
modes  of  judicial  procedure,  this  antagonism  to  the  principle  of 
the  new  system,  which  was  at  the  outset  confined  to  a  small 
though  very  able  portion  of  the  bench,  was  long  since  abandoned  ; 
and  the  courts  have  in  most  of  the  States  not  only  conformed  to 
the  letter  of  the  reformatory  legislation,  but  have  to  a  consider- 
able extent,  but  not,  as  T  think,  to  the  full  extent,  accepted  and 
carried  out  its  evident  spirit  and  meaning.  I  speak  advisedly  in 
this  statement.  While  the  courts  on  the  whole.,  and  in  all  the 
States,  do  not  show  a  disposition  to  defeat  the  reform  by  a  hostile 
construction,  but  rather  seem  desirous  of  promoting  it,  and  estab- 
lishing it  upon  a  secure  basis,  there  are  yet  marked  differences 
in  this  respect  among  the  States,  and  also  sti-ange  inconsistencies 
in  the  application  of  general  principles  to  particular  instances. 
The  acceptance  of  the  reformed  procedure  is  much  more  con- 
strained and  reluctant  in  certain  of  the  States  than  in  the  re- 
maining and  by  far  the  larger  portion  of  them.  Again,  a  lack 
of  uniformity  will  be  discovered  in  applying  the  most  general  and 
comprehensive  principles  of  interpretation  to  the  various  ele- 
ments and  features  of  judicial  procedure.  All  these  inconsis- 
tencies, when  they  exist,  have  arisen  from  the  incapacity  of  the 
judicial  mind  to  apprehend  the  fact  that  legal  actions  and  equi- 
table actions  have  been  abolished,  and  a  "  civil  action  "  has  been 
substituted  in  their  place.  Conceding  this  truth  in  general, 
courts  have  sometimes  failed  to  act  upon  it  in  reference  to  some 
subordinate  particulars;  the  result  has  been,  not  a  perfect  har- 
monious structure  built  up  by  judicial  labor,  but  a  structure, 
although  following  on  the  whole  a  comprehensive  and  symmetri- 
cal plan,  yet  marred  by  many  breaks  and  unfinished  parts,  and 
misshapen  additions.  In  short,  the  true  fundamental  principles 
of  construction  have  been  generally  adopted  as  guides,  the  true 
spirit  and  design  of  the  reformed  system  have  been  generally 
apprehended ;  but  in  descending  to  the  details,  and  in  prescribing 
the  practical  rules  of  procedure,  this  principle  and  this  spirit 
have  been  sometimes  forgotten  or  intentionally  disregarded. 

§  68.  It  has  been  abundantl}'  settled,  in  perfect  accordance 
with  the  theory  developed  in  the  preceding  section,  and  in  strict 
conformity  with  the  language  and  design  of  all  the  State  codes 
and  practice  acts,  that  the  new  system  has  not  produced,  and 
was  not  intended  to  produce,  any  alteration  of  nor  direct  effect 
upon  the  primary  rights,  duties,  and  liabilities  of  persons  created 


GENEEAL    NATUEE    OF   THE    CIVIL   ACTION. 


77 


by  either  department  of   the   nninicipal  law.^      Whatever  may 
have  been  the  nature  or  extent  of  these  pnmary  rights  and  duties, 


1  Peck  V.  Newton,  46  Barb.  173,  174, 
per  Parker  J. ;  Cole  v.  Reynolds,  18  N.  Y. 
74,  76,  per  Harris  J. ;  Lattin  v.  McCarty, 
41  N.  Y.  107,  110,  per  Hunt  C.  J. ;  Meyers 
V.  Field,  37  Mo.  434,  441,  per  Holmes  J. ; 
Richardson  v.  iVIeans,  22  Mo.  495,  498,  per 
Leonard  J. ;  Maguire  v.  Vice,  20  Mo.  429  ; 
Matlock  V.  Todd,  25  Ind.  128,  130,  per 
Elliott  J. ;  Woodford  v.  Leavenworth,  14 
Ind.  311,  314,  per  Worden  J. ;  Emmons  v. 
Kiger,  23  Ind.  483,  487  ;  DeWitt  v.  Hayes, 
2  Cal.  463,  468,  per  Murray  C.  J. ;  Grain 
V.  Aldrich,  38  Cal.  514;  Cropsey  v. 
Sweeney,  27  Barb.  310;  Klonne  v.  Brad- 
street,  7  Ohio  St.  322,  325,  per  Bowen  J. ; 
Garrett  v.  Gault,  13  B.  Mon.  378,  380,  per 
Hise  J.  ;  Bonesteel  v.  Bonesteel,  28  Wise. 
245,  250,  per  Lyon  J. ;  Dickson  v.  Cole, 
34  Wise.  621,  625;  Martin  v.  Mobile  &  O. 
R.  R.,  7  Bush,  116,  124;  Richmond,  &c. 
T.  Co.  V.  Rogers,  7  Bush,  532,  535;  Law- 
son  V.  Plaff,  1  Handy,  449,  452  ;  Claussen 
V.  La  Franz,  4  Greene  (la.),  224  ;  Smith 
V.  Rowe,  4  Cal.  6.  As  the  very  language 
used  by  the  judges  in  certain  of  these 
cases  will  illustrate  better  tlian  any  de- 
scription the  exact  views  of  the  judiciary 
in  regard  to  this  fundamental  principle, 
and  especially  the  extent  to  which  it  has 
been  applied  in  the  controversies  before 
them,  I  shall  quote  from  it  at  some 
length.  Peck  v.  Newton,  46  Barb.  173, 
was  an  action  to  recover  possession  of 
land,  the  plaintiff's  title  being  equitable, 
substantially  that  of  a  vendee,  and  the 
defendant  being  an  intruder  without  title 
so  far  as  the  case  discloses  ;  the  complaint 
simply  demanded  possession.  The  court 
held  that  the  plaintiff  could  not  recover ; 
that  he  should  have  obtained  a  specific 
performance  from  his  vendor,  and  then 
brought  an  action  for  the  possession. 
Parker  J.  said  (p.  174)  :  "  Although  the 
code  has  abolished  the  distinctions  be- 
tween actions  at  law  and  suits  in  equity, 
so  for  as  it  rei/arcis  the  forms  of  procedure, 
still  the  principles  by  which  the  rights  of 
the  parties  are  to  be  determined  remain 
unchanged."  Whether  the  court  properly 
applied  the  principle  whicli  they  invoke 
may  well,  as  I  think,  be  questioned.  Does 
not  the  plaintiff's  ability  to  recover  the 


possession  in  this  action  depend  upon  the 
"  forms  of  procedure  "  rather  than  upon 
"  the  principles  by  which  the  rights  of 
the  parties  are  to  be  determined  "  ?  This 
particular  question  will  be  examined  at 
large  in  section  five  of  the  present  chap- 
ter. In  Cole  V.  Reynolds,  18  N.  Y.  74, 
Mr.  Justice  Harris  thus  states  the  doc- 
trine (p.  76):  "  Tiie  principles  by  which 
the  rights  of  the  parties  are  to  be  deter- 
mined remain  unchanged.  The  code  has 
given  no  new  causes  of  action.  In  some 
cases  parties  are  allowed  to  maintain  an 
action  who  could  not  have  maintained  it 
before ;  but  in  no  case  can  such  an  action 
be  maintained  when  no  action  at  all  could 
have  been  maintained  before  upon  the 
same  state  of  facts.  If,  under  the  former 
system,  a  given  state  of  facts  would  have 
entitled  a  party  to  a  decree  in  equity  in 
his  favor,  the  same  state  of  facts  in  an 
action  prosecuted  in  the  manner  pre- 
scribed by  the  code  will  now  entitle  him 
to  a  judgment  to  the  same  effect.  If  the 
facts  are  such  that,  at  the  common  law, 
the  party  would  have  been  entitled  to 
judgment,  he  will,  by  proceeding  as  the 
code  requires,  obtain  the  same  judgment. 
The  question,  tiierefore,  is,  whether,  in 
the  case  now  under  consideration,  the 
facts,  as  they  are  assumed  to  be,  would, 
before  the  adoption  of  the  code,  have 
sustained  an  action  at  law  or  a  suit  in 
equity."  The  leading  case  of  Lattin  v. 
McCarty,  41  N.  Y.  107  (1869),  is  very  de- 
cisive, both  from  the  manner  in  which 
the  questions  arose,  from  the  allegations 
of  the  pleadings,  and  from  the  language 
of  the  opinion  delivered  b}-  Hunt  C.  J., 
and  concurred  in  by  the  entire  court.  It, 
of  course,  overrules  all  prior  decisions  in 
that  State  which  were  opposed  to  it  in 
their  letter  or  in  their  spirit,  destroys  the 
effect  of  numerous  judicial  dictd  scattered 
through  the  reports,  and  settles  the  law 
for  New  York.  The  complaint  sets  out 
facts  showing  an  equitable  ownership  of 
land  in  the  plaintiff,  and  a  legal  title  in 
the  defendant  by  means  of  a  deed  from 
the  admitted  source  of  title,  regular  in 
form,  but  alleged  to  have  been  fraudulent 
in  fact :  and  it  prayed  possession  of  the 


78 


CIVIL   REMEDIES. 


from  whatever  causes,  facts,  acts,  or  omissions  they  took  their 
rise,  whether  they  were  denominated  legal  or  equita])le,  they 


land,  cancellation  of  said  deed,  and  a 
conveyance  from  the  defendant  to  the 
plaintiff.  A  demurrer  to  the  complaint, 
on  the  fjround  that  two  causes  of  action 
had  been  improjierly  united,  haviuff  been 
sustained,  the  plaintiff  appealed.  Mr. 
Justice  Hunt  delivered  the  opinion  of 
the  court,  reversing  the  judgment  below, 
from  which  I  take  the  following  extract 
(p.  109)  :  "Assuming  that  the  complaint 
does  contain  two  causes  of  action  as  is  in- 
sisted, the  judgment  was  still  erroneous. 
The  argument  principally  relied  upon  to 
sustain  the  demurrer  is  this,  that  the  two 
causes  of  action  are  of  ditlerent  charac- 
ters, —  one  an  action  of  ejectment,  being 
an  action  at  law,  the  other  an  action  to 
set  aside  a  deed  as  fraudulent,  and  of  an 
equitable  nature  ;  that  the  latter  may  be 
tried  by  tlie  court,  while,  in  the  former, 
the  party  is  entitled  to  have  his  case 
passed  upon  by  a  jury.  The  coditiers 
labored  assiduously  to  anticipate  and  to 
overrule  this  objection."  He  cites  the 
preface  of  the  code,  and  §§  69,  167,  and 
proceeds  :  "  In  these  provisions,  and  in 
others,  the  distinction  between  legal  and 
equitable  causes  of  action  is  recognized. 
There  is  no  attempt  to  abolish  this  dis- 
tinction, which  would  be  quite  unavailing. 
The  attempt  is  to  abolish  the  distinction 
between  the  forms  of  action  and  the  modes 
of  proceeding  in  the  several  casus.  The 
difficulty  under  consideration  has  also 
been  expressly  overruled  by  this  court 
in  the  cases  that  I  shall  presently  cite." 
And  he  cites  several  decisions  which  I 
shall  refer  to  hereafter.  In  Meyers  v. 
Field,  37  Mo.  434,  441,  Mr.  Justice  ilolmes 
said :  "  The  distinction  between  law  and 
equity  has  not  been  abolished  by  the  new 
code  of  practice.  Equitable  rights  are 
still  to  be  determined  according  to  the 
doctrines  of  equity  jurisprudence,  and  in 
the  peculiar  modes  of  proceeding  which 
are  sometimes  required  in  such  cases; 
and  legal  rights  are  to  be  ascertained  and 
adjudged  upon  the  princii)les  of  law  ;  and 
the  rules  of  proceeding  at  law  are  in  many 
respects  very  different  from  those  which 
are  applicable  to  equity  cases."  It  should 
be  remarked  that  much  which  Mr.  Justice 


Holmes  says  must  be  taken  with  great 
caution.  His  position  in  regard  to  the 
reformed  procedure  was  quite  similar  to 
that  occupied  by  Mr.  Justice  S.  L.  Sel- 
den.  He  refused  to  see  in  the  new  system 
any  substantial  change  ;  and,  although  he 
seems  to  have  led  the  court  of  Missouri  to 
approve  and  adopt  his  peculiar  views,  that 
tribunal  has  since,  as  will  be  seen  in  sub- 
sequent sections,  utterly  repudiated  them. 
In  Richardson  v.  Means,  22  Mo.  498,  the 
rule  was  thus  stated  by  Leonard  J. :  "  The 
code  has  not  changed  the  rights  of  parties, 
but  only  provided  new  remedies  for  their 
enforcement.  It  has  not  abolished  the 
distinction  between  legal  and  equitable 
rights,  but  the  distinction  l^etween  legal 
and  equitable  remedies,  so  far  at  least  as 
to  provide  that  one  form  of  suit  shall  be 
used  for  the  enforcement  of  both  classes 
of  rights."  It  is  plain  that  the  judge  uses 
the  word  "  remedies  "  here  as  synonymous 
with  the  instruments,  the  actions  them- 
selves, and  not  the  reliefs  procured  there- 
by. In  Matlock  v.  Todd,  25  Ind.  128,  the 
defendant  had  invoked  the  statute  of  six 
years'  limitation,  which  would  bar  an  ac- 
tion at  law ;  but  the  court  held  that  the 
equitable  rule  applied,  saying,  "  Though 
the  code  has  abolished  the  distinction  be- 
tween actions  at  law  and  suits  in  equity 
and  the  forms  of  pleading,  it  has  not 
changed  the  rules  of  law  as  to  the  rights 
of  parties."  In  Woodford  v.  Leavenworth, 
14  Ind.  311,  314,  Worden  J.,  said  :  "  It  is 
undoubtedly  true  that  if,  by  the  rules 
either  of  law  or  of  equit}',  the  plaintiff  is 
entitled  to  recover  on  the  facts  stated,  he 
may  do  so  in  this  case.  But  the  abolition 
of  the  distinction  between  actions  at  law 
and  suits  in  equity  does  not  entitle  a  party 
to  recover  in  a  case  where  before  such 
abolition  he  could  not  have  recovered 
either  in  law  or  in  equity." 

The  courts  of  California  have,  from  the 
very  adoption  of  the  new  system  by  the 
legislature  of  that  State,  accepted  and 
administered  its  provisions  and  principles 
according  to  their  spirit  and  true  intent ; 
and  I  know  of  no  decided  cases  from 
which  the  profession  can  obtain  more  aid 
in  construing  the  reformatory  legislation 


GENERAL    NATURE    OF   THE   CIVIL    ACTION.  79 

remain  exactly  the  same  as  before.  The  codes  do  not  assume  to 
abolish  the  distinctions  between  "  law  "  and  "  equity,"  regarded 
as  two  complementary  departments  of  the  municipal  law ;  not 
a  clause  is  to  be  found  which  suggests  such  a  revolution  in  the 
essential  nature  of  the  jurisprudence  which  we  have  inherited 
from  England.  The  principles  by  which  the  courts  determine 
the  primary  rights  and  duties  of  litigant  parties  remain  unal- 
tered ;  upon  the  acts  or  omissions  which  were  the  occasion  of  a 
right  called  equitable  the  same  right  is  still  based,  and  is  still 
properly  termed  equitable ;  from  the  acts  or  omissions  which 
were  the  occasions  of  a  right  called  legal  the  same  right  still 
arises,  and  is  still  with  propriety  termed  legal.  I  remark,  in 
passing,  that  much  of  the  confusion  and  uncertainty  which  now 
exist  would  at  once  disaj^pear,  if  the  bar  and  the  bench  should 
adojit  a  nomenclature  in  conformity  with  the  settled  principle  of 
interpretation,  and  should  speak  of  legal  and  equitable  rights, 
legal  and  equitable  remedies,  but  not  of  legal  and  equitable 
actions.  To  term  an  action  "■  legal "  or  ''  equitable  "  is  a  mis- 
nomer, and  one  which  involves  a  wrong  conception  and  a  false 
doctrine,  since  the  statute  has  removed  all  distinction  between 
legal  and  equitable  actions,  and  has  substituted  in  place  of  both 
a  single  "  civil  action ; "  and  the  courts  have  decided  that  the 
legislature  intended  exactly  what  it  has  said.     But  as  the  legisla- 

as  a  whole,  than  many  whkh  are  to  be  entitle  the  plaintiff  to  the  equitable  inter- 
found  in  the  series  of  California  Reports,  position  of  the  court,  he  must  show  a 
In  one  of  tiie  earliest  of  these,  De  W^itt  r.  proper  case  for  the  interference  of  a  court 
Hayes,  2  Cal.  463,  which  was  an  action  to  of  chancery,  and  one  in  which  he  has  no 
restrain  the  collection  of  a  local  tax  or  adequate  or  complete  relief  at  law."  In 
assessment,  Murray  C.  J.  stated  the  doc-  Bonesteel  v.  Bonesteel,  28  Wise.  245,  250, 
trine  in  so  clear  and  correct  a  manner  Lyon  J.  said  :  "  There  are  certain  essen- 
that  I  shall  quote  from  his  judgment  at  tial  and  inherent  distinctions  between  ac- 
some  length  (p.  468)  :  "The  legislature,  tions  at  law  and  in  equity,  to  abolish  wliicli 
in  providing  that  there  shall  be  but  one  is  beyond  the  power  of  legislative  enact- 
form  of  civil  action,  cannot  be  supposed  to  ment.  The  legislature  may  abolish  the 
have  intended  at  one  stroke  to  abolish  all  old  forms  of  action,  and  has  done  so  ;  but 
distinction  between  law  and  equity  as  to  the  essential  jn-inciples  of  equitable  ac- 
actions.  Such  a  construction  would  lead  tions  and  equitable  relief,  as  distinguished 
to  infinite  perplexities  and  endless  diffi-  from  legal  actions  and  remedies,  are  as 
culties.  ...  So  cases  legal  and  equitable  vital  now,  and  as  clearly  marked  and  de- 
have  not  been  consolidated  ;  and  though  fined,  as  before  the  enactment  of  the  code, 
there  is  no  difference  in  the  form  of  a  bill  They  are  indestructible  elements  in  our 
in  equity  and  a  common-law  declaration  system  of  jurisprudence,  and  the  courts 
under  our  system,  where  all  relief  is  are  constantly  required  to  recognize  and 
sought  in  the  same  way  from  the  same  ai)ply  them."  See  Mowry  t-.  Hill,  11  Wise, 
tribunal,  the  distinction  between  law  and  146, 149. 
equity  is  as  naked  and  broad  as  ever.   To 


80  CIVIL   REMEDIES. 

ture  did  not  say,  nor  mean  to  say,  that  the  distinctions  between 
legal  and  equitable  rights  or  remedies  are  abolished,  those  terms 
may  be  used  with  propriety  and  correctness.  The  reformed 
American  system,  in  short,  has  given  no  new  causes  of  action. 
Primary  rights  and  duties  are  unchanged  ;  the  delicts  or  wiongs 
which  are  the  violations  of  these  rights  and  duties  are  still  com- 
mitted in  the  same  manner  as  before  ;  and  as  these  primary  rights 
and  duties,  and  the  wrongs  which  violate  them,  constitute  the 
causes  of  action  over  which  the  courts  exercise  their  remedial 
jurisdiction,  it  is  plain  that  no  statute  relating  solely  to  pro- 
cedure can  increase,  diminish,  or  modify  the  causes  of  action 
which  exist  independently  of  procedure.  In  some  instances 
particular  parties  are  permitted  to  maintain  an  action  who  could 
not  have  maintained  it  under  the  old  practice  ;  but  in  no  instance 
can  this  now  be  done,  where  upon  the  same  facts  and  circum- 
stances a  similar  action  could  not  have  been  maintained  by  some 
person.  A  familiar  illustration  of  this  statement  is  found  in  the 
change  made  in  the  common-law  rule  prohibiting  an  action  by 
the  assignee  of  a  non-negotiable  thing  in  action,  and  requiring 
the  suit  to  be  prosecuted  in  the  name  of  the  assignor,  although 
for  the  benefit,  and,  as  it  was  finally  settled,  under  the  com- 
plete control  of  the  assignee.  The  codes  have  abrogated  this 
technical  dogma,  and  thus  permit  an  action  to  be  brought  by  a 
party  who  formerly  had  no  such  power ;  but  this  does  not  ci'eate 
nor  constitute  any  new  cause  of  action.  The  assignee  now  sues 
where  the  assignor  sued  ;  the  same  facts  must  be  proved,  the 
same  rights  asserted,  and  the  same  relief  given  ;  the  only  change 
is  in  permitting  the  assignee  to  accomplish  directly,  and  in  his 
own  name,  what  he  before  accomplished  indirectly  and  by  the 
use  of  another's  name. 

§  69.  The  doctrine  thus  uniformly  established  in  reference  to 
the  effect  of  the  reform  legislation  upon  primary  rights  and  duties, 
and  causes  of  action,  is  also  as  clearly  settled  in  reference  to  its 
effect  upon  remedies  and  remedial  rights,  when  the  term  is  used 
—  as  it  properly  should  be  —  to  denote  the  reliefs  which  are  con- 
ferred upon  parties,  and  not  the  means  of  procuring  these  reliefs. 
The  word  "  remedies  "  is  sometimes  used  in  two  different  tech- 
nical senses,  and  from  this  dual  meaning  there  arises  —  as  in  all 
such  cases  —  doubt  and  confusion.  The  secondary  and  in  strict- 
ness improper  signification  renders  the  word  equivalent  to  the 


GENERAL   NATURE   OF   THE   CIVIL    ACTION. 


81 


mere  judicial  instruments  and  their  incidents,  the  actions  at  law, 
suits  in  equity,  special  proceedings,  and  the  like,  —  the  various 
steps  in  a  forensic  controversy  vi^hich  fall  within  the  proper 
domain  of  practice.  The  primary  and  strictly  accurate  significa- 
tion makes  it  synonymous  with  the  judgments  which  are  pro- 
nounced by  the  court,  and  which  establish  the  remedial  rights 
and  prescribe  the  manner  in  which  and  the  means  by  which  they 
are  to  be  satisfied.  Or  "  remedies  "  may  denote  those  judgments 
executed  and  performed  by  which  the  party  has  received  the 
very  benefit  to  which  he  was  entitled,  —  the  sum  of  money,  the 
possession  of  the  land  or  of  the  chattels,  the  execution  and  de- 
livery of  the  deed,  the  cancellation  of  the  agreement,  the  removal 
of  the  obstruction,  or  whatever  else  was  ordered  to  be  done  by 
the  opposite  party.  In  either  of  these  two  latter  senses,  the 
remedies  which  were  in  use  under  the  former  system,  and  which 
were  awarded  by  the  courts  upon  proper  occasions,  are  abso- 
lutely unaffected  in  any  of  their  essential  features  by  the  reform- 
atory legislation.^     The  general  and  sweeping  language  so  often 


1  See  cases  last  cited  under  §  68  ;  also, 
Carrico  v.  Tomlinson,  17  Mo.  499 ;  Butler 
V.  Lee,  33  How.  Pr.  R.  251  (Ct.  of  App.). 
The  report  of  tlie  latter  requires  a  correc- 
tion. The  first  paragraph  of  the  head- 
note  is  not  sustained  by  any  decision  of 
the  court  in  the  case.  A  decision  had 
been  made  by  the  court  below  in  July, 
entered  and  certified  by  the  clerk  in 
August,  and  incorporated  into  the  judg- 
ment roll  in  November.  It  became  im- 
portant to  determine  at  which  of  tiicse 
times  the  decision  below  became  the  judg- 
ment of  tiie  court.  Mr.  Justice  Morgan 
regarded  the  solution  of  this  difficulty  as 
depending  upon  the  question  whetiier  the 
action  was  legal  or  equitable  in  its  nature, 
and  with  that  view  proceeded  to  examine 
the  former  practice  at  law  and  in  chancery 
as  to  the  entry  of  j  udgments.  In  the  course 
of  his  opinion  he  made  the  following  re- 
mark, which  the  reporter  has  raised  to  tiie 
dignity  of  the  head-note,  as  tliough  it  was 
one  of  the  necessary  points  decided  by  the 
court :  "  I  am  aware  that  this  confusion  in 
the  use  of  language  is  in  part  at  least  to 
be  ascribed  to  the  code  of  procedure 
which  attempts  to  abolish  the  distinction 
between  proceedings  at  law  and  in  equity, 
whereas  it  is  evident  from  the  very  nature 


of  the  case  that  judgments  at  law  and  in 
equity  cannot  be  assimilated."  This  is 
doubtless  true  when  the  essential  nature 
of  the  judgment — that  is,  wiiat  it  directs 
to  be  done  or  not  to  be  done  —  is  referred 
to ;  but  if  the  reference  is  merely  to  the 
incidents,  tiie  mode  of  entry,  the  official 
acts  to  be  done  by  the  clerk,  and  the  like, 
it  is  not  true ;  there  is  absolutely  notliing 
in  the  way  of  making  tiie  rules  as  to  such 
matters  the  same  for  all  kinds  and  sorts  of 
judgments.  But  the  code  makes  no  at- 
tempt to  produce  any  "assimilation  "  in 
tlie  essential  nature  of  difTerent  classes  of 
judgments,  does  not  even  suggest  such  a 
result.  Mr.  Justice  Morgan  is  also  care- 
less in  his  citation  of  the  language  used 
by  the  legislature.  The  code  does  not 
"  attempt  to  abolish  the  distinction  be- 
tween proceedings  at  law  and  in  equity." 
It  abolishes  tiie  distinction  between  ac- 
tions at  law  and  suits  in  equity.  The  word 
"  proceedings "  is  much  broader  than 
eitlier  action  or  suit ;  and,  as  has  been 
shown,  tlie  removal  of  all  distinction  be- 
tween tliese  latter  does  not  in  terms  nor 
in  spirit  purport  to  remove  tlie  distinctions 
whicli  may  subsist  between  tlie  judgments 
that  are  the  results  of  the  action  or  suit. 


6 


82  CIVIL   REMEDIES. 

quoted  abolishes  the  distinction  between  actions  at  law  and  suits 
in  equity ;  and  other  provisions  and  clauses  recognize  all  the 
forms  of  judgment  known  to  the  common-law  courts,  namely, 
for  payment  of  money,  for  the  possession  of  land  and  of  chattels, 
and  also  the  specific  kinds  of  relief  which  courts  of  equity  em- 
bodied in  their  decrees.  Strictly  speaking,  the  remedy  given  is 
no  part  of  the  action,  but  is  the  result  thereof;  it  is  the  object 
for  which  the  action  is  prosecuted,  the  end  at  which  all  the  liti- 
gation is  directed.  A  modification  of  the  action,  a  change  in  its 
forms,  incidents,  names,  modes  of  procedure,  including  the  pro- 
cess, the  pleadings,  the  parties,  the  manner  of  trial,  and  all  other 
steps  preparatory  to  the  judgment,  does  not  involve  any  alteration 
in  this  result ;  the  general  language  of  the  codes  does  not,  there- 
fore, include  and  apply  to  the  substance  of  the  judgments,  that 
is,  of  the  remedies.  Without,  however,  relying  exclusively  upon 
an  interpretation  which  may  seem  to  be  too  refined  and  verbal, 
the  practical  construction  given  by  the  courts,  and  as  illustrated 
by  the  citations  contained  in  the  preceding  foot-note,  full}'^  sus- 
tains the  conclusions  which  are  reached  by  an  analysis  of  the 
language.  Abolition  of  the  distinction  between  legal  and  equi- 
table actions,  and  of  the  forms  of  legal  actions,  does  not  abolish 
the  distinctions  between  remedies.  If  from  the  nature  of  the 
primary  right,  and  of  the  wrong  by  which  it  is  invaded,  the 
injured  party  would  under  the  old  system  have  been  entitled  to 
an  equitable  remedy,  he  is  still  entitled  to  the  same  relief,  and 
it  may  well  be  termed  equitable ;  if  from  the  like  causes  he 
would  have  been  entitled  to  a  legal  remedy,  he  is  still  entitled 
to  the  same  relief,  and  it  may  properly  be  described  as  legal. 

§  70.  It  having  been  thus  determined  that  no  effect  has  been 
wrought  upon  the  primary  rights  and  duties  which  constitute  the 
great  body  of  the  municipal  law,  nor  upon  the  final  remedies 
granted  to  the  litigant  parties,  the  courts  have,  with  general 
though  not  with  absolute  unanimity,  agreed  upon  the  inter- 
pretation to  be  given  to  the  provision  under  consideration.  The 
broad  principle  of  construction  may  be  regarded  as  established 
in  most  if  not  all  the  States,  that  the  clauses  of  the  statutes 
abolishing  the  distinction  between  actions  at  law  and  suits  in 
equity  were  intended  to  mean  exactly  what  they  say,  without 
reservation  or  equivocation.  All  the  differences  which  belonged 
to  the  external  machinery  by  which  a  judicial  controversy  was 


GENERAL   NATURE    OP    THE   CIVIL    ACTION. 


83 


conducted  up  to  the  judgment  itself,  all  the  rules  respecting 
forms  of  action,  all  the  peculiar  characteristics  of  a  legal  or  of 
an  equitable  action,  or  of  the  various  kinds  of  legal  actions, 
except  the  constitutional  requirement  as  to  the  jury  trial,  have 
been  swept  away.  One  action,  governed  in  all  instances  by  the 
same  principles  as  to  form  and  methods,  suffices  for  the  maintain- 
ing of  all  classes  of  primary  rights,  and  for  the  pursuit  of  all 
kinds  of  civil  remedies.^     I  say,  governed  by  the  same  j^'^'^nctples 


1  Dobson  V.  Pearce,  12  N.  Y.  156,  165  ; 
Crary  v.  Goodman,  12  N.  Y.  266,  268; 
N.  Y.  Cent.  Ins.  Co.  v.  Nat.  Protection 
Ins.  Co.,  14  N.  Y.  85, 90 ;  Cole  v.  Reynolds, 
18  N.  Y.  74,  76  ;  Bidwell  v.  Astor  Ins.  Co., 

16  N.  Y.  263,  267 ;  Phillips  v.  Gorham,  17 
N.  Y.  270,  273,  275  ;  Laub  v.  Buckrailler, 

17  N.  Y.  620,  626  ;  N.  Y.  Ice  Co.  v.  North- 
west Ins.  Co.,  23  N.  Y.  357,  359  ;  Brown 
V.  Brown,  4  Kobt.  688,  701 ;  Grinnell  v. 
Buchanan,  1  Daly,  538  ;  Crosier  v.  Mc- 
Laughlin, 1  Nevada,  348 ;  Rogers  v.  Pen- 
niston,  16  Mo.  432  ;  Troost  v.  Davis,  31 
Ind.  34,  39 ;  Scott  v.  Crawford,  12  Ind. 
411;  Kramer  v.  Rebman,  9  lovva,  114; 
De  Witt  V.  Hayes,  2  Cal.  463;  Wiggins  v. 
McDonald,  18  Cal.  126 ;  Bo  wen  v.  Aubrey, 
22  Cal.  566,  569;  Ireland  v.  Nichols,  1 
Sweeney,  208;  Garret  v.  Gault,  13  B. 
Mon.  378,  380;  Wright  v.  Wright,  54 
N.  Y.  437,  442;  White  v.  Lyons,  42  Cal. 
279 ;  Giles  v.  Lyon,  4  N.  Y.  600 ;  Getty 
V.  Hudson  River  R.  R.,  6  How.  Pr.  269 ; 
Mowry  v.  Hill,  11  Wise.  146,  149.  To 
obtain  any  clear  and  correct  notions  of 
the  general  principle  stated  in  the  text, 
the  facts  and  circumstances  to  which  it 
has  been  applied  from  time  to  time  must 
be  exhibited,  and  the  language  used  by 
the  judges  in  making  such  application 
must  be  quoted  at  some  length.  In  Dob- 
son  V.  Pearce,  12  N.  Y.  156,  165,  which 
is  a  leading  and  important  case,  Allen  J., 
said  :  "  Under  our  present  judiciary  sys- 
tem the  functions  of  the  courts  of  com- 
mon law  and  of  chancery  are  united  in 
the  same  court,  and  the  distinctions  be- 
tween actions  at  law  and  suits  in  equity, 
and  the  forms  of  all  such  actions  and 
suits,  are  abolished  ;  and  the  defendant 
may  now  set  forth  by  answer  as  many 
defences  as  he  may  have,  whether  they 
be  such  as  have  heretofore  been  denomi- 
nated legal  or  equitable  or  both.  .  .  .  The 


intent  of  the  legislature  is  very  clear  that 
all  controversies  respecting  the  subject- 
matter  of  the  litigation  should  be  deter- 
mined in  one  action ;  and  the  provisions 
are  adapted  to  give  effect  to  that  intent." 
Johnson  J.,  said  in  the  same  case  (p.  168) : 
"  The  code  having  abolished  the  distinc- 
tive actions  at  law  and  suits  in  equity, 
and  the  forms  of  all  such  actions  as  there- 
tofore existing,  an  equitable  defence  to  a 
civil  action  is  now  as  available  as  a  legal 
defence.  The  question  is.  Ought  the 
plaintiff  to  recover  ?  and  any  tiling  which 
shows  that  he  ought  not  is  available  to 
the  defendant,  whether  it  was  formerly  of 
equitable  or  legal  cognizance."  In  Crary 
V.  Goodman,  12  N.  Y.  266,  208,  the  doc- 
trine was  stated  by  Johnson  J.,  as  fol- 
lows :  "  Since  the  enactment  of  the  code 
the  question  is  not  whetlier  the  plaintiff 
has  a  legal  right  or  an  equitable  right,  or 
the  defendant  a  legal  or  an  equitable  de- 
fence against  the  plaintiff's  claim,  but 
whether,  according  to  the  whole  law  of 
the  land  applicable  to  the  case,  the  plain- 
tiff makes  out  the  right  which  he  seeks 
to  establish,  or  the  defendant  shows  that 
the  plaintiff  ought  not  to  have  the  relief 
sought  for."  The  N.  Y.  Ins.  Co.  v.  The 
Nat.  Protec.  Ins.  Co.,  14  N.  Y.  85,  was 
brought  to  reform  a  policy  of  insurance 
and  to  recover  the  amount  due  after  re- 
formed. Denio  J.,  said  (p.  90)  :  "  As  the 
courts  of  the  State  are  now  constituted, 
they  apply  legal  and  equitable  rules  and 
maxims  indiscriminately  in  every  case. 
In  a  suit  which  could  not  formerly  have 
been  defended  at  law,  but  as  to  which 
the  defendant  could  have  been  relieved 
in  equity,  he  can  now  have  the  like  relief 
in  the  first  action.  And  such  relief  con- 
sists in  denying  the  plaintiff  the  right  to 
recover.  It  was  always  theoretically  un- 
reasonable that  in  one  branch  of  the  judi- 


84 


CIVIL    REMEDIES. 


as  to  form  and  method  ;  but  this  does  not  assume  that  exactly 
the  same  form  or  method  is  to  be  or  can  be  used  in  all  actions 


ciary  tlie  court  should  hold  that  the  party 
prosecuted  had  no  defence,  while  in  an- 
other branch  the  judfios  should  decide 
that  the  plaintiff  had  no  right  to  recover. 
The  authors  of  the  code,  aiming  at  greater 
theoretical  i)erfcction,  have  abolished  this 
anomaly  ;  and  now,  when  an  action  is 
prosecuted,  we  inquire  whether,  taking 
into  consideration  all  the  princijjles  of 
law  and  equity  bearing  on  the  case,  the 
plaintiff'  ought  to  recover."  In  Cole  v. 
Eeynokls,  18  N.  Y.  74,  76,  Mr.  Justice 
Harris  used  this  language  :  "By  the  code 
the  distinction  l)etween  actions  at  law  and 
suits  in  equity  is  abolished.  The  course 
of  proceeding  in  both  classes  of  causes  is 
now  the  same.  Whether  the  action  de- 
pend upon  legal  principles  or  equitable,  it 
is  still  a  civil  action,  to  be  commenced  and 
prosecuted  without  reference  to  this  dis- 
tinction." In  Brown  v.  Brown,  4  Robt. 
688,  701,  Mr.  C.  J.  Robertson  states  the 
doctrine  in  a  very  accurate  and  compre- 
hensive manner  as  follows  :  "  But  all  the 
boundaries  of  jurisdiction  and  distinctions 
between  causes  of  action  as  legal  or  equi- 
table being  removed,  there  seems  no  rea- 
son why  all  the  relief  to  which  the  plaintiff 
is  entitled  should  not  be  given  in  one  ac- 
tion. .  .  .  Kow,  however,  the  only  ordi- 
nary proceeding  in  a  court  to  enforce  or 
protect  a  right  or  prevent  a  wrong  is  in 
the  most  general  terms  an  action.  It  can 
have  but  one  form.  Every  distinction  be- 
tween actions  at  law  and  suits  in  equity, 
and  their  forms,  is  abolished.  Every 
court,  therefore,  whether  exercising  legal 
or  equitable  jurisdiction  in  such  proceed- 
ings, now  possesses  the  former  powers  of 
both  courts  of  law  and  equity  to  investi- 
gate disputed  questions  by  every  mode 
peculiar  to  either,  and  to  make  its  judg- 
ment as  to  the  rights  of  the  parties  efiect- 
ual."  Language  used  by  Ch.  J.  Daly  in 
Grinnell  v.  Buchanan,  1  Daly,  538,  is 
equally  clear  and  accurate  :  "  The  dis- 
tinction between  legal  and  equitable  tri- 
bunals, between  actions  at  law  and  suits 
in  equity,  has  been  abolished ;  and  we 
have  but  one  form  of  procedure,  whether 
the  relief  sought  be  legal  or  equitable  or 
both.  .  .  .  Where  a  choice  is  to  be  made 


between  the  form  of  proceedings  at  law 
or  in  equity,  that  one  is  to  be  preferred 
which  is  the  most  direct,  consistent,  and 
comprehensive ;  and  in  this  respect  the 
rule  which  prevails  in  courts  of  equitj-  is 
a  less  technical  and  a  better  one  than  that 
which  exists  in  courts  of  law."  The  rule 
spoken  of  was  that  permitting  assignees 
of  things  in  action  to  sue  in  their  own 
names.  The  same  general  doctrine  has 
been  fully  adopted  by  the  courts  of  other 
States.  In  Troost  v.  Davis,  31  Ind.  34, 
3U,  Ray  J.,  said  :  "  In  our  State,  where  the 
distinctions  between  actions  at  law  and 
suits  in  equity,  and  the  forms  of  all  such 
actions  and  suits,  are  abolished;  and,  where 
an  equitable  defence  may  be  set  up  to  a 
legal  claim,  it  seems  inconsistent  to  assert 
that,  because  a  party  is  asserting  a  right 
under  a  legal  form,  equity  will  not  give 
the  same  protection  to  equitable  rights 
that  they  would  receive  if  the  proceeding 
was  under  equitable  forms.  All  tliese  dis- 
tinctions in  form,  as  well  as  actions  and 
suits,  are  abolished  ;  and  equity  can  be  in- 
voked under  all  circumstances  where  an 
equitable  right  calls  for  protection  or  en- 
forcement." And  in  California,  in  Wig- 
gins ?'.  McDonald,  18  Cal.  126,  Cope  J., 
says  (p.  127):  "We  have  but  one  form 
of  action  for  the  enforcement  of  private 
rights  ;  and  with  certain  exceptions  the 
statute  requires  that  the  action  shall  be 
prosecuted  in  the  name  of  the  real  party 
in  interest.  In  the  form  of  remedy  no  dis- 
tinction exists  between  legal  and  equita- 
ble rights.  In  this  respect  the  two  classes 
of  rights  are  placed  precisely  upon  the 
same  footing,  and  must  undergo  the  same 
remedial  process  for  their  enforcement." 
The  same  court,  in  the  mucli  later  case 
of  White  I'.  Lyons,  42  Cal.  279,  282,  an- 
nounces the  doctrine  by  Mr.  Justice 
Crockett  in  the  following  manner:  "  Un- 
der the  code  there  is  but  one  form  of  ac- 
tion in  this  State ;  and  if  the  comi)laint 
states  facts  which  entitle  the  plaintiff"  to 
relief,  either  legal  or  equitable,  it  is  not 
demurrable  on  tlie  ground  that  it  does  not 
state  facts  sufficient  to  constitute  a  cause 
of  action.  If  the  facts  stated  are  such  as 
address  themselves  to  the  equity  side  of 


GENERAL   NATURE   OF   THE    CIVfL   ACTION. 


85 


for  whatever  purposes  brought.  The  common  principle  as  to 
form  and  method  is  not  that  all  actions  shall  assume  absolutely 
the  same  form,  nor  is  it  that  they  shall  be  governed  by  any  tech- 
nical rules  Avhich  separate  them  into  arbitrary  classes ;  it  is  that 
they  shall  all  conform  to  and  follow  the  facts  and  circumstances 
which  constitute  the  cause  of  action,  and  entitle  the  parties  to 
relief.  It  is  established,  therefore,  that  a  single  judicial  action, 
based  upon  and  conforming  to  the  facts  and  circumstances  of 
each  particular  case,  whatever   be    the   nature  of   the   primary 


the  court,  the  appropriate  relief  will  be 
granted  by  tlie  court  sitting  as  a  court  of 
equity.  On  the  other  liand,  if  the  facts 
alleged  are  purely  cognizable  in  a  court 
of  law,  the  proper  relief  will  be  adminis- 
tered in  that  form  of  proceeding.  But  a 
complaint  which  states  a  sufficient  cause 
of  action,  either  at  law  or  in  equity,  is  not 
demurrable  as  not  stating  facts  sufficient 
to  constitute  a  cause  of  action.  In  tliis 
case  the  defendant  does  not  question  the 
sufficiency  of  the  facts  alleged  to  consti- 
tute a  cause  of  action  in  a  proceeding  at 
law,  but  insists  that  this  complaint  is  a 
bill  in  equity,  and  that  a  court  of  equity 
has  no  jurisdiction  of  the  case.  In  that 
event  the  court  will  treat  it  as  an  action 
at  law,  and  adniininister  the  proper  relief 
in  that  form  of  proceeding."  The  same 
conclusions  as  the  foregoing  were  reached 
by  the  Court  of  Appeals  in  tlie  very  recent 
case  of  Wright  v.  Wright,  54  N.  Y.  437. 
The  action  was  by  a  wife  against  a  hus- 
band upon  a  promissory  note  given  by 
him  to  her  before  the  marriage,  and  in 
contemplation  thereof.  The  complaint 
was  in  the  usual  form  of  an  action  on  a 
note.  Reynolds  J.,  after  showing  tiiat, 
under  the  statutes  of  New  York,  a  wife 
may  sue  her  husband,  says  (p.  442)  : 
"  While  it  is  admitted  that  the  rights  of 
the  plaintiff  could  be  enforced  by  a  suit 
in  equity,  yet  it  is  insisted  that  this,  being 
an  action  at  law,  cannot  be  maintained  by 
a  married  woman  against  her  husband. 
It  might  be  asked  /;//  ivliat  authoriti/  the  de- 
fendant names  this  an  action  at  law.  What 
additional  allegation  in  the  complaint 
would  have  enabled  the  defendant  to 
designate  it  as  a  suit  in  equity  ?  Noth- 
ing more  could  be  truly  said,  except  that 
the  consideration  of  the  note  was  a  prom- 


ise to  marry,  which  had  been  performed  ; 
and  all  this  was  proved  witliout  objection. 
Wiiile  regard  is  still  to  be  liad  in  the  ap- 
plication of  legal  and  equitable  principles, 
there  is  not  of  necessity  any  difference  in 
the  mere  form  of  procedin-e,  so  far  as  the 
case  to  be  stated  in  the  complaint  is  con- 
cerned. All  that  is  needful  is  to  state  the 
facts  sufficient  to  show  that  tlie  plaintiff 
is  entitled  to  the  relief  demanded  ;  and  it 
is  the  duty  of  the  court  to  affi)rd  the  relief 
without  stopping  to  speculate  upon  the 
name  to  be  given  to  the  action.  These 
principles  have  been  frequentlj^  acted 
upon  by  the  court.  Indeed,  if  some  sucli 
result  has  not  been  attained  by  the  code 
of  procedure,  we  are  still  in  the  labyrinth 
of  legal  technicalities  in  practice  and 
pleading,  contrived  long  ago  and  tend- 
ing to  enslave  the  administration  of  jus- 
tice, and  from  which  it  has  been  hoped 
we  had,  by  legislative  aid,  secured  com- 
parative freedom.  When,  as  in  our  S3's- 
teni,  a  single  court  has  jurisdiction  both 
in  law  and  in  equity,  and  administers 
justice  in  a  common  form  of  procedure, 
the  two  jurdisdictions  of  necessity  be- 
came to  some  extent  blended.  This  must 
be  especially  the  result  when  the  forms  of 
pleading  and  proceeding  are  alike.  .  .  . 
Certain  forms  are  needful  to  be  preserved  ; 
but  they  must  not  obstruct  the  patli  to 
exact  justice  ;  and,  if  they  do,  they  will 
be  swept  away."  I  know  of  no  opinion 
which  more  accurately  and  completely 
expresses  the  true  intent  and  spirit  of  the 
reformed  procedure  than  this.  It  con- 
tains tlie  principle  from  which  the  entire 
system  must  be  developed,  if  that  system 
is  to  be  a  harmonious  and  symmetrical 
one. 


86  CIVIL   REMEDIES. 

riglit  which  they  create,  must  be  used  for  the  pursuit  of  all  rem- 
edies, legal  or  equitable. ^  The  authorities  referred  to  in  the 
notes  show  that  this  doctrine  is  now  adopted  in  all  the  States 
where  the  reformed  procedure  prevails,  and  that  there  is  little 
variation  in  the  language  by  which  it  is  expressed.  When,  how- 
ever, we  shall  pass  from  this  statement  of  the  doctrine  in  the 
abstract  to  the  apj)lication  of  it  in  particular  instances,  —  as,  for 
example,  in  questions  as  to  parties,  pleading,  judgments,  —  the 
perfect  uniformity  of  judicial  opinion  and  action  disappears ; 
but  still  in  the  great  majority  of  the  States  the  courts  have 
fairly  followed  the  true  intent  of  the  legislation  and  the  correct 
principle  of  interpretatio*n. 

§  71.  Thus  it  may  be  regarded  as  a  settled  rule,  resulting  from 
the  statutory  provision  in  question,  that  if  a  plaintiff  has  set 
forth  facts  constituting  a  cause  of  action,  and  entitling  him  to 
some  relief,  either  legal  or  equitable,  his  action  shall  not  be  dis- 
missed because  he  has  misconceived  the  nature  of  his  remedial 
right,  and  has  asked  for  a  legal  remedy  when  it  should  have 
been  equitable,  or  for  an  equitable  remedy  when  it  should  have 
been  legal.'^     Nothing  was  a  more  familiar  rule  in  the  old  system 

1  See  cases  cited  in  last  preceding  after  stating  the  old  rule  by  which  the 
note.  action   would    have    been    properly   dis- 

2  Crary  v.  Goodman,  12  N.  Y.  266, 268 ;  missed,  proceeds  (p.  64) :  "  la  determin- 
N.  Y.  Cent.  Ins.  Co.  v.  National  Protec.  ing  whether  an  action  will  lie,  tlie  courts 
Ins.  Co  ,  14  N.  Y.  85,  90  ;  Emery  v.  Pease,  are  to  have  no  regard  to  the  old  distinc- 
20  N.  Y.  62,  64  ;  Bidwell  v.  Astor  Ins.  Co.,  tions  between  legal  and  equitable  reme- 

16  N.  Y.  263,  267  ;  Phillips  v.  Gorham,  17  dies.  Those  distinctions  are  expressly 
N.  Y.  270,  273,  275  ;  Laub  v.  Buckmiller,  abolished.     A  suit  does  not,  as  formerly, 

17  N.  Y.  620,  626;  N.  Y.  Ice  Co.  v.  N.  W.  fail  because  the  plaintiff  has  made  a  mis- 
Ins.  Co.,  23  N.Y.  357,  359 ;  Barlow  v.  Scott,  take  as  to  the  form  of  the  remedy.  If  the 
24  N.  Y.  40,  45  ;  Marquat  v.  Marquat,  12  case  which  he  states  entitles  him  to  any 
N.  Y.  336  ;  Troost  v.  Davis,  31  Ind.  34,  39 ;  remedy,  either  legal  or  equitable,  his  corn- 
Grain  r.Aldrich,  38  Cal.  514, 520;  Leonard  plaint  is  not  to  be  dismissed  because  he 
V.  Rogan,  20  Wise.  540,  542.  And  see  the  has  prayed  for  a  judgment  to  which  he  is 
various  quotations  in  note  to  §  70,  ante,  not  entitled."  Bidwell  v.  Astor  Ins.  Co., 
In  addition  to  several  of  the  quotations  16  N.  Y.  263,  was  an  action  on  a  policy  of 
last  referred  to,  the  following  extracts  insurance.  The  complaint  asked  that  the 
will  illustrate  the  statement  of  the  text:  policy  be  reformed,  and  that  the  defendant 
In  Emery  v.  Pease,  20  N.  Y.  62,  the  com-  pay  87,000  as  the  sum  insured  by  the  re- 
plaint  set  out  facts  entitling  the  plaintitf  formed  policy.  Without  a  reformation 
to  an  accounting,  but  did  not  ask  one ;  it  the  plaintiff  was  not  entitled  to  a  judg- 
did  not  aver  any  settlement,  nor  ascer-  ment  for  any  amount.  On  the  trial  a 
tained  balance  due,  and  demanded  judg-  mistake  in  the  instrument  was  proved, 
ment  for  a  sum  certain.  On  the  trial  the  and  the  court  directed  a  judgment  for 
complaint  was  dismissed,  on  the  ground  87,000.  The  defendant  insisted  that  a 
that  it  did  not  set  forth  facts  sufficient  to  judgment  for  damages,  instead  of  one  for 
constitute  a  cause  of  action.   ComstockJ.,  a  reformation,  was  improper.     The  court 


GENERAL   NATURE    OF   THE    CIVIL   ACTION.  87 

than  the  one  which  turned  a  plaintiff  out  of  court  if  he  had  mis- 
conceived the  nature  or  form  of  his  action.  If  he  brought  an 
action  at  law,  and  on  the  trial  proved  a  case  for  equitable  relief, 
or  if  he  filed  a  bill  in  equity,  and  at  the  hearing  shoAved  himself 
entitled  to  a  judgment  at  law,  he  must  absolutely  fail  in  that 
proceeding.  It  is  very  plain  that  this  arbitrary  and  most  unjust 
rule  rested  wholly  upon  the  ancient  notions  as  to  distinctions 
betAveen  legal  and  equitable  actions,  and  did  not  rest  upon  any 
notions  as  to  the  primary  rights  which  the  litigant  parties  sought 
to  maintain.  Wherever,  therefore,  the  letter  and  spirit  of  the 
reformed  system  are  followed  by  the  courts,  this  harsh  rule  is 
swept  away.  A  suit  does  not  now  ftiil  because  the  plaintiff 
has  erred  as  to  the  form  or  kind  or  extent  of  the  remedy  he  de- 
mands. A  party  cannot  be  sent  out  of  court  merely  because  the 
facts  alleged  do  not  entitle  him  to  relief  at  law,  or  merely  becaiise 
they  do  not  entitle  him  to  relief  in  equity.  If  the  case  which 
he  states  shows  him  entitled  to  any  relief,  either  legal  or  equi- 
table, his  complaint  is  not  to  be  dismissed  because  he  has  prayed 
for  a  judgment  that  is  not  embraced  by  the  facts.  The  only 
inconvenience  which  a  plaintiff  can  suffer  from  such  an  error 
is,  that  the  trial  may,  perhaps,  be  suspended,  and  the  cause  sent 


say  :"  There  was  nothing  in  the  objection  on  the  subject  of  the  equitable  relief." 
that  the  court  should  have  stopped  with  The  same  doctrine  is  again  applied  in 
reforming  the  policy,  and  turned  the  plain-  Barlow  v.  Scott,  24  N.  Y.  40,  45,  Lott  J., 
tiff  over  to  a  new  action  to  recover  dam-  saying:  "Under  our  present  arrange- 
ages."  The  N.  Y.  Ice  Co.  v.  N.  W.  Ins.  ment,  the  same  court  has  both  legal  and 
Co.,  23  N.  Y.  357,  is  an  important  and  sug-  equitable  jurisdiction  ;  and  if  the  facts 
gestivecase.  The  action  was  on  an  insur-  stated  by  a  party  in  his  complaint  are 
ance  policy.  The  plaintiff  claimed  a  money  sufficient  to  entitle  him  to  any  of  the 
judgment  for  a  loss,  and  also  a  reforma-  relief  asked,  and  an  answer  is  put  in 
tion  of  the  policy  wiiich,  if  made,  would  putting  these  facts  in  issue,  it  would  be 
entitle  him  to  a  further  recovery  of  money,  erroneous  to  dismiss  the  complaint  on 
He  failed  to  make  out  a  case  for  a  reforma-  the  trial  merely  because  improper  relief  is 
tion;  whereupon  the  trial  court  dismissed  primarily  demanded."  The  true  principle 
the  action,  holding  that  the  other  issue  was  tersely  and  most  accurately  stated  by 
could  not  be  tried.  Comstock  J.,  said  Sanderson  J.,  in  Grain  v.  Aldrich,  38  Cal. 
(p.  859)  :  "I  am  of  opinion  that  it  was  514,520:  "  Legal  and  equitable  relief  are 
erroneous  to  turn  the  plaintiff  out  of  court  administered  in  tiie  same  foruniTind  accord- 
on  the  mere  ground  that  he  had  not  entitled  ing  to  the  same  general  plan.  A  party 
himself  to  the  equitable  relief  granted,  if  cannot  be  sent  out  of  court  merely  be- 
there  was  enough  left  of  his  case  to  entitle  cause  his  facts  do  not  entitle  him  to  relief 
him  to  recover  the  sum  in  which  he  was  at  law,  or  merely  because  he  is  not  enti- 
insured.  No  suggestion  was  made  that  tied  to  relief  in  equity,  as  the  case  may 
the  complaint  did  not  show  a  good  cause  be.  He  can  be  sent  out  of  court  only 
of  action  for  this  money,  even  after  strik-  when  upon  his  facts  he  is  entitled  to  no 
ing  out  all  the  allegations  and  the  prayer  relief  either  at  law  or  in  equity." 


OO  CIVIL   REMEDIES. 

to  another  branch  of  tlie  court,  or,  as  in  Kentuck}^  Iowa,  and 
Oregon,  to  another  docket.^  If  a  plaintiff  had  brought  his  action 
on  the  theory  that  it  was  based  upon  an  equitable  riglit,  and 
sought  an  equitable  relief,  and  it  turns  out  to  be  in  effect  legal, 
so  that  the  defendant  is  entitled  to  a  jury  trial,  the  trial  must 
be  had  before  a  jury,  and  not  before  a  single  judge  sitting  as 
a  chancellor ;  and,  when  the  trial  had  taken  place  before  the 
wrong  tribunal,  the  judgment  would  be  reversed,  and  the  cause 
sent  for  a  new  trial  in  the  proper  place.^ 

§  72.  The  rule  discussed  in  the  foregoing  paragraph  as  to  the 
relation  between  the  facts  alleged  and  the  relief  asked  and  granted 
was  not  established  Avithout  a  struggle,  and  has  not  at  all  times, 
and  in  all  the  States,  prevailed  without  exception,  and  perhaps  is 
not  even  now  universaUy  accepted.  Many  early  cases  in  New 
York  were  decided  under  the  influence  of  the  former  practice 
and  the  ancient  notions  ;  and,  although  the  Court  of  Appeals 
has  completely  repudiated  the  doctrine  of  those  adjudications, 
yet  the  j)rinciples  announced  by  it  have  not  always  been  fol- 
lowed by  the  inferior  tribunals  of  the  same  State.^  In  one  or 
two  of  the  States,  and  esiDccially  in  Missouri,  the  ancient  rules 
and  doctrines  in  reference  to  this  subject-matter  have  been  re- 
peatedly asserted,  and,  until  a  very  recent  j)eriod,  prevailed  in 
the  courts,  notwithstanding  the  adoption  of  the  reformed  proced- 
ure. In  ]Missouri,  the  judiciary,  standing  alone  in  this  respect, 
preserved  for  a  long  time  the  real  distinctions  between  legal  and 
equitable  actions  as  strongly  marked  as  under  the  former  system, 
and,  in  fact,  insisted  upon  a  rule  more  strict  than  that  enforced 
b}^  the  English  Court  of  Chancery.  The  following  examples 
w^ill  illustrate  this  peculiar  interpretation  of  their  code  by  the 
Missouri  courts.  In  those  cases  where  the  plaintiff  holds  the 
equitable  title  to  land,  while  the  legal  title  is  in  the  defendant  by 

1  McCrory  v.  Parks,  18  Ohio  St.   1 ;  trial  before  a  jury  and  the  residue  before 

Ellitiiorpe  v.  Buck,  17  Ohio  St.  72.     See  another  tribunal.     If,  however,  the  plain- 

Dickson  v.  Cole,  34  Wise.  6"21,  62.5.  tiff  insists  upon  a  trial  before  the  court,  and 

^  Davis  v.  Morris,  36  N.  Y.  &69,  571,  his  claim  is  acceded  to,  upon  the  discov- 

572,  per  Grovcr  J.     In  this  case  tlie  New  ery  that  the  action  presents  issues  which 

York  Court  of  Appeals  laid  down,  in  a  must  be  decided  bj'  a  jury,  the  complaint 

formal  manner,  the  rule  as  to  the  trial  of  should  not  be  dismissed,  but  the  cause 

legal  and  equitable  issues.     If  tlie  plead-  should  be  sent  to  the  circuit  for  trial  as  a 

ings    present    both    legal   and   equitable  jury  cause;  Parker  i;.   Laney,  58  N.  Y. 

issues,  tiie  parties  are  entitled  to  a  jury,  469 ;  Richmond  v.   Dubuque,  &c.   R.  R., 

and  all  the  issues  must  be  tried  together;  33  Iowa,  422,  489-491. 
that  is,   there   should   not   be  a   partial         ^  ggg  Peck  v.  Newton,  46  Barb.  173, 174. 


GENERAL   NATURE    OF   THE   CIVIL    ACTION.  89 

means  of  a  fraudulent  conveyance,  it  has  been  frequently  held 
that  the  former  must  first  obtain  a  decree  in  equity,  cancelling 
the  outstanding  deed,  and  must  then  resort  to  a  separate  action 
of  ejectment  to  recover  possession  of  the  land.  A  vendee  of 
land  has  also  been  required  to  proceed  in  two  distinct  actions, — 
the  first  equitable,  to  compel  a  specific  performance,  and  the 
second  legal,  to  obtain  possession.  The  plaintiff  was  turned 
over  to  a  second  legal  action  in  order  to  complete  his  remedy, 
because,  as  the  court  repeatedly  insisted,  possession  of  land  can 
never  be  awarded  by  a  decree  in  equity. ^  The  Missouri  court  has 
recently  receded,  in  part  at  least,  from  this  extreme  position,  and 
is  plainly  tending  towards  a  complete  harmony  with  the  doctrines 
which  are  accepted  in  other  States.^  A  simple  criterion  has  been 
suggested  by  which  to  determine  the  nature  of  the  action.  If  the 
facts  alleged  in  the  complaint  or  petition  would  entitle  the  plain- 
tiff to  both  legal  and  equitable  relief,  the  prayer  for  judgment 
—  that  is,  the  nature  of  the  remedy  demanded  —  might  be  a  cer- 
tain test  by  which  the  character  of  the  suit  should  be  known.^ 
This  suggestion  has  not,  however,  been  followed  in  other  cases. 

§  73.  To  recapitulate  the  results  of  the  foregoing  discussion  : 
The  courts  have,  with  few  exceptions,  accepted  the  language  of 
the  code  in  its  simplicity,  and  have  given  to  it  a  reasonable 
meaning ;  they  have  acknowledged  that  the  legislature  intended 
to  abolish,  and  has  abolished,  all  the  features  which  distinguish 
legal  and  equitable  actions  from  each  other,  and  has  established  a 
single  action  for  the  pursuit  of  all  remedies ;  they  have  settled 
the  doctrine  that  by  the  use  of  this  single  action  neither  the 
primary  rights  nor  the  remedial  rights  of  litigant  parties  are 
affected  or  in  any  manner  modified,  since  they  do  not  depend 
upon  matters  connected  with  the  form  or  external  features  of 
the  action,  and  that  among  the  matters  which  are  thus  con- 
nected with  the  form  are  the  setting  forth  or  statement  of  the 
cause  of  action  or  defence  in  the  pleadings,  and  the  demand  of 
relief  or  prayer  for  judgment.     A  mistake  or  misconception  in 

1  Meyers  v.  Field,  37  Mo.  434,  441 ;  Walker,  25  Mo.  367 ;  Reed  v.  Robertson, 

Maguire   v.  Vice,  20  Mo.  429  ;    Curd  v.  45  Mo.  580 ;  Rutherford  v.  Williams,  42 

Lackland,  43  Mo.  189  ;   Wynn  v.  Corry,  Mo.  18,  23  ;  Fithian  v.  Monks,  43  Mo.  502, 

43  Mo.  301 ;  Gray  v.  Payne,  43  Mo.  203 ;  517  ;  Magwire  v.  Tyler,  47  Mo.  115,  127. 
Bobb  V.  Woodward,  42  Mo.  482,  487  ;  Pey-         ^  Henderson  v.  Dickey,  50  Mo.  161, 

ton  V.  Rose,  41   Mo.  257,  262;    Gott  v.  165,  per  Wagner  J. 

Powell,  41  Mo.  416 ;   Moreau  v.  Detche-         »  Gillett  v.  Treganza,   13  Wise.  472, 

mendy,  41  Mo.  431 ;  Walker's  Admr.  v.  475,  per  Dixon  C.  J. 


90  CIVIL    REMEDIES. 

respect  to  the  action  being  called  legal  or  equitable,  does  not 
defeat  the  plaintiff,  but  at  most  may  require  a  trial  before  a 
properly  constituted  court.  One  fundamental  principle  controls 
the  administration  of  justice  by  means  of  this  common  civil 
action,  and  this  principle  may  be  formulated  in  the  following 
manner :  The  object  of  every  action  is  to  obtain  a  judgment  of 
the  court  sustaining  or  protecting  some  primary  right  or  enforc- 
ing some  primary  duty ;  every  such  primary  right  and  duty  re- 
sults from  the  operation  of  the  law  upon  certain  facts,  in  the 
experience  of  the  person  holding  the  right  or  subjected  to  the 
duty  ;  every  wrong  or  violation  of  this  primary  right  or  duty 
consists  in  certain  facts,  either  acts  or  omissions  of  the  person 
committing  the  wrong.  A  statement,  therefore,  of  the  facts 
from  which  the  primary  right  or  duty  arises,  and  also  of  the 
facts  which  constitute  the  wrong  or  violation  of  such  primary 
right  or  duty,  shows,  and  must  of  necessity  show,  at  once  a  com- 
plete cause  of  action ;  that  is,  the  court  before  which  this  state- 
ment is  made  can  perceive  from  it  the  entire  cause  of  action,  the 
remedial  right  flowing  therefrom,  and  the  remedy  or  remedies 
which  should  be  awarded  to  the  injured  party.  All  actions  can 
be  and  should  be  constructed  in  the  manner  thus  described  ;  and 
if  so  they  would  conform  to  the  single  and  common  principle 
announced  by  the  reformed  method  of  procedure.  Whether  the 
rights  and  duties  are  legal  or  equitable,  whether  the  remedies 
appropriate  are  legal  or  equitable,  whether  the  facts  are  simple 
and  few  or  complex  and  numerous,  does  not  in  the  slightest 
degree  affect  the  application  and  universality  of  this  principle ; 
it  is  the  central  conception  of  the  new  system,  the  corner-stone 
upon  which  the  whole  structure  is  erected. 

§  74.  It  is  not  my  purpose  in  the  present  section  to  follow  this 
general  principle  in  its  application  to  the  various  features  and 
phases  of  an  action  ;  to  do  so  would  be  to  anticipate  the  matter 
contained  in  several  subsequent  chapters.  A  brief  allusion  must 
be  made,  however,  to  one  of  these  topics,  or  else  the  theor}^  of 
construction  finally  accepted  by  the  courts  will  be  but  partially 
explained,  —  I  refer  to  the  subject  of  pleading.  No  single 
element  of  difference  more  sharply  marked  the  contrast  be- 
tween the  action  at  law  and  the  suit  in  equit}'  under  the  former 
system  than  the  manner  in  which  the  litigant  parties. in  each 
stated  their  causes  of  action  and  their  defences.     Although  it 


GENERAL   NATURE   OF   THE   CIVIL   ACTION.  91 

was  said  that  in  each  kind  of  judicial  proceeding  the  facts  con- 
stituting the  cause  of  action  or  defence  should  alone  be  alleged, 
this  rule  was  not  followed  in  actual  practice.  In  a  common- 
law  action  the  "•  issuable  facts "  only  were  spread  upon  the 
record.  The  plaintiff  never  narrated  the  exact  transaction 
between  himself  and  the  defendant  from  which  the  rights  and 
duties  of  the  parties  arose ;  he  stated  tvhat  he  conceived  to 
he  the  legal  effect  of  these  facts.  Thus,  if  the  transaction  was  a 
simple  arrangement  respecting  the  sale  and  purchase  of  goods, 
instead  of  disclosing  exactly  what  the  parties  had  actually  done, 
the  pleader  used  certain  formulas  expressing  the  supposed  legal 
effect  of  what  had  been  done,  as  that  he  had  "  sold  and  de- 
livered "  or  had  "bargained  and  sold"  the  chattels;  and,  if  a 
mistake  was  made  in  properly  conceiving  of  this  legal  effect,  — 
that  is,  if  the  real  facts  of  the  transaction,  as  disclosed  by  the 
evidence,  did  not  correspond  with  this  conception  of  their  legal 
effect  taken  by  the  pleader,  —  the  plaintiff  might  be,  and,  unless 
permitted  to  amend,  would  be,  turned  out  of  court.  On  the  equit}^ 
side  the  facts  as  they  occurred,  rather  than  the  legal  aspect  of 
or  conclusions  from  these  facts,  were  set  forth,  according  to  the 
original  theory  of  equitable  pleading.  In  practice  this  narrative 
was  always  accompanied  by  a  detail  of  mere  evidentiary  matter, 
which  was  inserted,  not  because  it  was  necessary  to  the  state- 
ment of  the  cause  of  action,  but  because  it  was  a  means  of 
obtaining  admissions  from  the  defendant,  and  of  thus  making 
him  a  witness  in  the  cause  against  himself.  A  bill  in  equity  had, 
therefore,  two  entirely  distinct  uses  and  offices  ;  it  was  a  nar- 
rative of  the  facts  from  which  the  jjlaintiffs'  rights  to  relief 
arose,  and  it  was  an  instrument  for  obtaining  evidence  from  the 
opposite  party.  This  latter  purjDOse,  which  was  known  as  "  dis- 
covery," the  codes  have  expressly  abolished,  and  have  substi- 
tuted in  its  stead  the  more  direct  method  of  an  oral  examination 
of  one  party  by  the  other,  if  desired,  either  on  the  trial  or  pre- 
liminary thereto. 

§  75.  Upon  the  adoption  of  the  reformed  system  in  New  York 
there  arose  at  once  in  that  State,  and  subsequently  in  other 
commonwealths,  two  schools  of  interpretation  in  reference  to  the 
modes  of  pleading  prescribed  by  the  new  procedure.  One  school 
maintained  that  all  the  distinctive  features  and  elements  of  the 
common  law  and  of  the  equity  modes  of  pleading  remained  in 


92  CIVIL   REMEDIES. 

full  force,  and  that  the  legislature  had  simply  abolished  certain 
names  and  certain  technical  rules  of  mere  form.  This  particular 
theory  was  a  necessary  and  evident  corollary  of  the  broader 
principle  advocated  by  the  same  scliool,  and  already  explained 
in  the  present  section,  that  the  division  of  actions  into  legal 
and  equitable  still  existed,  in  all  that  pertained  to  their  sub- 
stantial nature  ;  if  actions  were  now,  as  before,  legal  or  e(|uital)le, 
the  most  characteristic  features  of  the  two  classes,  that  which 
marked  their  difference  in  the  most  emphatic  manner,  —  the 
peculiar  modes  of  pleading  appropriate  to  each,  —  were  of  course 
preserved.  In  a  common-law  cause  the  pleader  was  to  follow 
the  common-law  rules  of  pleading,  and  in  an  equity  suit  the 
equity  rules.  This  doctrine  was  asserted  and  was  sustained  with 
great  ability  and  earnestness  by  several  judges  in  the  infancy 
of  the  system.  It  would  be  useless  to  cite  all  the  reported  de- 
cisions in  which  it  was  advocated  ;  and  I  shall  only  refer  to  a 
few  which  have  always  been  regarded  as  leading.^  The  other 
school  asserted  that  all  the  distinctions  between  the  common- 
law  and  the  equity  modes  of  pleading  had  been  embraced  within 
the  sweeping  language  of  the  statute,  and  had  been  discarded ; 
that  one  general  principle  of  pleading  was  applicable  to  the 
civil  action  in  all  cases,  whatever  might  be  the  nature  of  the 
primar}'  right  it  sought  to  maintain,  or  of  the  remedy  it  sought 
to  procure.  This  principle,  which  was  stated  in  a  preceding 
paragraph,  is  simple,  universal,  and  natural.  It  is  merely  that 
the  pleader  must  narrate  in  a  plain  and  concise  manner  the 
actual  facts  from  which  the  rights  and  duties  of  the  parties 
arise,  and  not  his  conception  of  their  legal  effect,  nor,  on  the 
other  hand,  the  mere  detail  of  evidence  which  substantiates  the 
existence  of  those  facts.  This  comprehensive  principle  applies 
to  all  kinds  of  actions,  to  one  founded  upon  a  legal  right  and 
seeking  a  legal  remedy,  and  to  one  founded  on  an  equitable 
right  and  seeking  an  equital)le  remedy ;  and  it  avoids  all  ques- 
tions and  difficulties  as  to  the  "  issuableness "    of  the  matters 


1  Rochester  City  Bank  v.  Suydam,  5  special  term  decisions  detracts  from  tlieir 

How.  Pr.  216  ;  Wooden  v.  WafHe,  0  How.  authority  ;  they  are  not,  liowever,  quoted 

Pr.  145.     I  cite  these,  because  they  were  as  precedents,  but  simply  as  ilhistrations 

pioneer  cases,  and  in  no  others  have  the  of  the   course  of  judicial   action   in   tlie 

arguments  in  favor  of  the  theorj-  which  matter   of  interpreting  the  code  of  pro- 

they  maintain  been  presented  with  greater  cedure. 
fulness  and  more  ability.     TJiat  they  are 


GENERAL   NATURE    OF   THE   CIVIL   ACTION.  93 

alleged.  Undoubtedly,  from  the  very  nature  of  the  primary 
riglits  invaded  and  of  the  remedies  demanded,  the  narrative  of 
facts  will  generally  be  much  more  minute,  detailed,  and  circum- 
stantial in  actions  brought  to  maintain  equitable  rights  and  to 
recover  equitable  relief  than  in  those  based  upon  legal  rights 
and  pursuing  legal  relief,  but  this  incident  does  not  alter  or 
affect  the  principle  which  governs  all  cases  ;  the  pleader  in  both 
cases  sets  out  the  facts  which  entitle  him  to  the  remedy  asked, 
and  no  more  ;  it  simply  happens  that  legal  remedies  usually 
depend  upon  a  few  positive  facts,  while  equitable  remedies 
often  arise  from  a  multitude  of  circumstances,  events,  and  acts, 
neither  of  which,  taken  by  itself,  would  have  created  any  right 
or  imposed  any  duty.  It  would  be  useless  to  incumber  the  page 
by  a  reference  to  all  the  reported  cases  in  which  this  doctrine 
has  been  approved  ;  and  1  shall  merely  cite  one  or  two  which  are 
leading  in  point  of  time,  and  which  may  be  regarded  as  exam- 
ples of  the  class. ^  Without  entering  upon  any  discussion  of 
these  two  theories,  it  is  enough  to  say  that  the  latter  one  has 
been  accepted  as  expressing  the  true  intent  and  spirit  of  the  new 
procedure,  and  the  former  has  left  scarcely  any  traces  in  the 
practical  administration  of  justice  in  the  great  majority  of  the 
States.  The  forms  contained  in  the  most  popular  and  approved 
text-books  upon  practice  and  pleading  furnish  a  sure  test ;  and, 
without  exception,  these  are  all  based  upon  the  method  of  inter- 
preting the  codes  last  described.  And  yet  with  great  inconsis- 
tency, as  it  seems  to  me,  the  courts  have  generally'  held  that 
the  ancient  forms  of  common-law  pleading  in  assumpsit  may 
be  used  in  actions  upon  contract,  especially  where  the  contract 
is  implied ;  that  they  sufficiently  meet  the  requirements  of  the 
codes,  although  they  do  not  set  out  the  actual  facts  of  the 
transaction  from  which  the  legal  right  arises.  Thus,  it  has 
been  decided  that  the  count  in  indebitatus  assumpsit  for  goods 
sold  and  delivered  is  a  sufficient  coni]3laint  or  petition   in    an 


1  Milliken  v.  Cary,  5  How.   Pr.  272 ;  the   sequel    tliat  the  Supreme  Court    of 

Williams  v.  Hayes,  5  How.  Pr.  470;  Peo-  Missouri  stands  quite  alone  —  or  at  least 

pie  V.  Ryder,   12  N.   Y.  433,  437.     The  did  so  until  a  very  recent  day  —  in  its 

doctrine  of  the  text  was  very  clearly  and  theory  of  interpretation,  and  retains  the 

accurately  stated  by  Crocker  J.,  in  Bowen  distinctions  between  legal  and  equitable 

V.  Aubrey,  22  Cal.  566,  569.     See  contra,  forms,  in  as  marked  a  manner  as  though 

the  remarks  of  Holmes  J.,  in  Mej'ers  v.  no  change  had  been  made  by  the  statutes. 
Field,  37  Mo.  484, 441.     It  will  be  seen  in 


94  CIVIL   REMEDIES. 

action  to  recover  the  price. ^  The  difference  between  tliis  ruling 
of  tlie  courts  and  the  theory  first  above  stated  is,  that  according 
to  the  hitter  theory  the  common-hiw  mode  of  stating  a  legal 
cause  of  action  or  defence  must  be  followed  in  substance,  while 
by  the  decisions  referred  to  it  mai/  be  followed  in  the  particular 
classes  of  actions  described.  But  even  this  ruling,  although,  as 
I  think,  a  plain  departure  from  the  essential  spirit  of  the  new 
system,  is  of  little  practical  importance  ;  the  bar  have,  with 
almost  absolute  unanimity,  adopted  the  method  of  stating  the 
facts  as  they  occurred,  and  do  not  attempt  to  aver  in  their  stead 
the  legal  fictions  of  promises  which  are  never  made,  or  con- 
clusions of  law  which  are  in  no  sense  of  the  term  actual  facts. 
There  are  other  important  features  of  an  action  —  the  parties, 
the  union  of  diiferent  causes  of  action  or  defence,  affirmative 
relief  to  the  defendant,  the  form  of  the  judgments,  and  the 
like  —  which  have  been  greatly  affected  by  the  general  provision 
of  the  statute  abolishing  the  distinctions  between  legal  and  equi- 
table methods,  and  the  judicial  interpretation  given  thereto  ;  but 
it  is  impossible  to  discuss  them  in  any  general  manner,  and 
their  particular  treatment  is  reserved  for  subsequent  chapters. 


SECTION    THIRD. 

THE  COMBINATION  BY  THE  PLAINTIFF  OF  LEGAL  AND  EQUITABLE 
PRIMARY  RIGHTS  AND  OF  LEGAL  AND  EQUITABLE  RExMEDIES 
IN  ONE  ACTION. 

§  76.  The  general  principles  of  unity,  developed  in  the  preced- 
ing sections,  will  now  be  applied  to  the  several  cases  which  are 
constantly  arising  in  the  practical  administration  of  justice,  for 
the  purpose  of  ascertaining  how  far  the  abolition  of  all  distinc- 
tions between  actions  at  law  and  suits  in  equity  has  affected  the 
process  of  stating  causes  of  action,  and  praying  for  and  obtaining 
remedies  by  the  plaintiff.     It  was  in  this  very  feature  of  the 

1  Allen  V.  Patterson,  7  N.  Y.  476,  478.  code  is  directly  violated,  forms  of  corn- 
Some  of  the  State  legislatures  have  by  a  plaints  or  petitions  being  sanctioned 
statutory  enactment  set  forth  forms  of  which  are  identical  with  tiie  ancient 
pleading  under  the  code,  and  thus  made  common  counts,  and  therefore  allege 
them  regular  and  valid.  It  is  strange  fiction  instead  of  facts.  See,  for  example 
that  in  some  of  these  the  spirit  of  the  statutes  of  Indiana. 


UNION    OF   LEGAL    AND    EQUITABLE   REMEDIES.  95 

judicial  process  —  the  stating  of  causes  of  action,  and  the  obtain- 
ing of  relief  thereon  —  that  the  distinction  spoken  of  was  exhib- 
ited in  the  most  marked  manner;  and  it  is  in  this  feature, 
therefore,  that  the  change  must  be  the  most  sweeping  and 
radical,  if  the  distinction  has  in  truth  been  abolished.  Under 
the  former  system  a  legal  primary  right,  when  invaded,  could 
only  be  redressed  by  an  action  at  law,  and  a  legal  judgment  alone 
was  possible  ;  while  an  equitable  primary  right  must  be  redressed 
x»r  protected  in  an  equity  suit  and  by  an  equitable  remedy.  A 
union  or  combination  of  the  two  classes,  either  wholly  or  par- 
tially, in  one  action,  was  unknown,  unless  permitted  by  some 
express  statute,  and  was  utterl}^  opposed  to  the  theory  which 
separated  the  two  departments  of  the  municipal  law.  The  new 
system  not  only  permits  but  encourages  —  and  in  its  spirit,  I 
believe,  requires  —  such  a  union  and  combination;  for  one  of  its 
elementary  notions  is  that  all  the  possible  disputes  or  controver- 
sies arising  out  of,  or  connected  with,  the  same  subject-matter  or 
transaction  should  be  settled  in  a  single  judicial  action. 

§  77.  The  possible  modes  or  forms  of  the  union  or  combination  by 
the  plaintiff  of  legal  and  equitable  primary  rights  and  remedies  in 
one  suit  are  the  following  :  (1)  Both  a  legal  and  an  equitable  cause 
of  action  may  be  alleged,  and  both  a  legal  and  an  equitable  rem- 
edy obtained  ;  (2)  both  a  legal  and  an  equitable  cause  of  action 
may  be  alleged,  and  the  single  remedy  obtained  may  be  legal  or 
equitable ;  (3)  upon  an  equitable  cause  of  action,  that  is,  an 
equitable  primary  right  alleged  to  have  been  invaded,  a  legal 
remedy  may  be  obtained ;  (4)  upon  a  legal  cause  of  action,  that 
is,  a  legal  primary  right  alleged  to  have  been  invaded,  an  equita- 
ble remedy  may  be  obtained ;  and  (5)  in  an  action  purely  legal, 
that  is,  where  the  primary  rights  asserted  to  have  been  invaded, 
and  the  remedy  demanded,  are  both  legal,  the  plaintiff  may  invoke 
an  equitable  right  or  title  in  aid  of  his  contention,  and  obtain  his 
remedy  by  its  means.  These  combinations,  I  believe,  exhaust  all 
possible  cases  of  union  on  the  part  of  the  plaintiff.  I  shall, 
therefore,  proceed  to  show  how  far  they  are  permitted  and  how 
far  refused  in  those  States  which  have  adopted  the  reformed  sys- 
tem of  procedure. 

§  78.  When  the  plaintiff  is  clothed  with  primary  rights,  both 
legal  and  equitable,  growing  out  of  the  same  cause  of  action  or 
the  same  transaction,  and  is  entitled  to  an  equitable  remedy,  and 


96  CIVIL   REMEDIES. 

also  to  a  fiirtlier  legal  remedy,  based  upon  the  sii])position  that 
the  equitable  relief  is  granted,  and  he  sets  forth  in  his  complaint 
or  petition  the  facts  which  sup})ort  each  class  of  rights,  and  wliich 
show  that  he  is  entitled  to  each  kind  of  remedy,  and  demands  a 
judgment  awarding  both  species  of  relief,  the  action  will  be  sus- 
tained to  its  full  extent  in  the  form  thus  adopted.  He  may,  on 
the  trial,  prove  all  the  facts  averred,  and  the  court  will  in  its 
judgment  formally  grant  both  the  equitable  and  the  legal  relief.^ 
It  will  be  noticed  that  this  proposition  embraces  only  those  cases 
in  which  the  legal  relief  demanded  rests  upon  and  flows  as  a 
consequence  from  the  prior  equitable  relief,  but  the  principle  of 
the  rule  is  not  confined  to  such  cases ;  it  extends  also  to  those  in 
which  the  two  remedies,  although  connected  with  the  same  trans- 
action or  subject-matter,  are  not  connected  as  cause  and  effect.^ 
This  is  the  most  complete  union  of  legal  and  equitable  primary 
rights  and  remedies  in  one  action  which  can  be  made;  but  it  is 
limited  and  restricted  to  those  cases  in  which  these  rights  and 
remedies  arise  from  the  same  transaction  or  subject-matter.  It  is 
not  generally  possible  to  join  one  legal  cause  of  action  with 
another  entirely  independent  equitable  cause  of  action,  there 
being  no  antecedent  connection  between  the  two.  In  the  cases 
described  above,  where  the  union  is  permitted,  there  is,  in  fact,  no 
joinder  of  different  causes  of  action ;  there  is  only  the  union  of 
remedial  rights  flowing  from  one  cause  of  action,  as  will  be  seen 
from  the  judgments  of  the  court  in  several  of  the  cases  cited  in 
the  note,  and  as  will  be  more  fully  shown  in  a  subsequent  chap- 
ter. This  rule,  which  has  been  firmly  estal)lished  by  the  court  of 
last  resort  in  New  York,  and  which  is  adopted  in  all  the  States 
with  one  or  two  exceptions,  has  been  applied  in  the  following 

1  Laub    V.  Buckniiller,  17  N.  Y.  620,  626-630,  per  Dixon  C.  J.,  for  a  very  elab- 

620;  Lattiii  i\  JNIcCarty,  41  N.  Y.  107,109,  orate   opinion    in  opposition  to  the  doc- 

110;  Davis   v.  Lamberton,  56  Barb.  480,  trine  of  the  text  and  of  tlie  cases  cited 

483  ;  Brown   v.  Brown,  4  Robt.  688,  700,  above  in  this  note; 

701;    Wali<er  v.   Sedgwicii,  8  Cal.  398;  -  See  N.  Y.  Ice  Co.r.  N.  W.  Ins.  Co., 

Welles  i\  Yates,  44  X.  Y.  52.3  ;  Henderson  23  N.  Y.  357,  359;  Gaboon  v.  Bank  of 

V.  Dickey,  50  Mo.  161,  165  ;  Guernsey  v.  Utica,  7  N.  Y.  486 ;  Broiestedt  v.   South 

Am.  Ins.  Co.,  17  iMinn.  104, 108;  Montgom-  Side  R.  R.,  55  N.  Y.  220,  222 ;  Turner  v. 

ery  v.  McEwen,  7  Minn.  351.     See,  iiovv-  Pierce,  34  Wise.  G58,  665,  per  Dixon   C. 

ever,  Hudson  v.  Caryl,  44  N.  Y.  553,  which  J.  ;  Linden  v.  Hepburn,  3  Sandf.  668,  671  ; 

holds  that,  in  an  action  brought  to  remove  Gray    v.   Dougherty,  25  Cal.  266.     The 

a  nuisance,  damages  can  only  be  awarded  legal  and  equitable  causes  of  action  should 

by  the  verdict  of  a  jury,  sed  qu.      See,  be  separately  stated.    Gates  r.  Kief,  7  Cal. 

also,  Supervisors  v.  Decker,  30  Wise.  624,  124  ;  Magwire  r.  Tyler,  47  Mo.  115,  127. 


UNION    OF   LEGAL   AND    EQUITABLE   REMEDIES.  97 

cases  among  others:  in  an  action  by  the  holder  of  the  legal  title 
to  correct  his  title-deed,  to  recover  possession  of  the  land  accord- 
ing  to  the  correction  thus  made,  and  to  recover  damages  for 
withholding  such  possession ;  ^  in  an  action  by  one  holding  the 
equitable  title  to  procure  defendant's  deed  to  be  cancelled,  and  a 
conveyance  by  defendant  to  himself,  to  recover  possession  and 
damages,  and  to   restrain  defendant  from  conveying  away   the 
land  ;2  in  an  action  hj  the  grantor  of  land  to  correct  his  deed  by 
the  insertion  of  an  exception  of  the  growing  timber,  and  to  re- 
cover damages  for  trees  embraced  in  the  exception  wrongfully 
cut  by  the  grantee  ;  ^  in  an  action  to  abate  a  nuisance,  to  restrain 
its  further  commission,  and  to  recover  damages  therefor ;  ^  in  an  ac- 
tion by  a  widow  to  establish  her  right  of  dower,  to  procure  it  to  be 
assigned,  to  recover  possession  and  damages ;  ^  and  in  an  action  by 
the  vendor  of  land  to  recover  a  money  judgment  on  notes  given 
him  for  the  price,  and  to  foreclose  his  lien  on  the  land  itself.^ 
§  79.  In  Missouri,  however,  the  judiciary  for  a  long  time  denied 
the  correctness  of  this  rule,  and  rejected  it  under  all  circum- 
stances in  which  it  could  possibly  be  applied.     The  doctrine  was 
asserted  and  maintained  in  a  long  series  of  adjudications  that  the 
holder  of    an  equitable    title,  or  the  possessor  of  an  equitable 
primary  right,  can  obtain  none  but  an  equitable  remedy  prose- 
cuted in  an  equitable  form  of  action.     The   Supreme  Court  of 
that  State  even  went  so  far  as  to  reject  the  familiar  principle  of 
equity  jurisprudence,  which  permitted  the   Court  of  Chancery, 
having  acquired  jurisdiction  by  means  of  some  equitable  right,  to 
go  on  and  administer  full  legal  relief  in  order  that  the  party 
should  not  be  put  to  the  trouble  and  expense  of  a  second  action 
at  law.     In  accordance  with  this  narrow  view  of  equity  and  this 
narrow  construction  of  the  reformed  legislation,  it  was  settled 
that  the  holder  of  an  equitable  title  who  seeks  to  enforce  his 
right  and  to  acquire  a  legal  title  by  means  of  a  specific  perform- 
ance,   a   cancellation,    or   a   reformation   of  deeds,   must,    after 
obtaining  that  relief,  bring  a  second  action  at  law  to  recover  the 
possession.     If  he  unite  his  equitable  claim  for  cancellation  and 

1  Laub  V.  Buckmiller,  17  N.  Y.  620.  that  a  jury  trial  is  necessary  to  the  re- 

2  Lattin  v.  McCarty,  41  N.  Y.   107 ;  covery   of  damages ;    Parker  v.  Laney, 
Henderson  v.  Dickey,  50  Mo.  161.  68  N.  Y.  469. 

3  Welles  V.  Yates,  44  N.  Y.  525.  &  Brown  v.  Brown,  4  Robt.  688. 

*  Davis  V.  Lamberton,  56  Barb.  480 ;         6  Walker  v.  Sedgwick,  8  Cal.  398. 
but  see  Hudson  v.  Caryl,  44  N.  Y.  553, 


98  CIVIL   REMEDIES. 

the  like  with  the  legal  claim  for  possession,  he  was  actually  to  be 
turned  out  of  court.  This  remarkable  interpretation  put  upon 
the  language  of  the  statute,  and  so  completely  defeating  its  plain 
intent,  was  resorted  to  in  the  following,  among  other  instances, 
which  are  selected  as  illustrations  merely :  in  actions  brought  to 
set  aside  and  cancel  deeds  of  conveyance  made  to  the  defendant, 
alleged  to  be  fraudulent,  and  to  vest  the  legal  title  in  the  plain- 
tiff, and  to  recover  possession  of  the  premises  in  question  ;^  in  an 
action  of  partition,  where  defendant  was  in  possession  of  the 
whole  land,  claiming  title  therein,  it  being  held  that  the  plaintiff 
must  first  establish  his  legal  right  by  ejectment,  and  then  bring 
an  equity  action  of  partition.^  The  Supreme  Court  of  Missouri 
has,  however,  in  a  very  recent  decision,  receded  from  this  very 
extreme  position,  and  has  jDartly  at  least  overruled  the  authority 
of  the  cases  referred  to  in  this  and  the  subsequent  paragraph. 
Although  the  single  judgment  does  not  in  its  reasoning  and  con- 
clusions accept  the  liberal  views  of  the  New  York  Court  of 
Appeals  in  their  full  scope  and  extent,  yet  it  plainly  tends  in  that 
direction,  conferring  the  reliefs  of  reformation  or  correction  of  a 
deed  of  conveyance  and  recovery  of  possession  of  the  land 
included  in  such  deed  as  corrected.^  The  judiciary  of  Wisconsin 
seem  now,  alone,  among  the  tribunals  of  the  several  States,  to 
reject  this  liberal  theory  of  interpretation,  and  to  require  separate 
actions  for  the  assertion  of  legal  and  equitable  rights  and  the 
procurement  of  legal  and  equitable  remedies.  The  principle  of 
unity  approved  and  adopted  by  the  highest  tribunal  of  New  York 
has  been  deliberately  rejected  after  a  most  thorough  examination, 
and  the  opposite  principle,  which  distinguishes  between  the  two 
classes  of  action,  and  retains  their  separate  use,  and  prohibits  the 
recovery  of  legal  and  equitable  remedies  in  one  suit,  is  avowedly 
accepted  as  being  the  correct  construction  of  the  legislative  pro- 
visions.'^ 

1  Curd  r.  Lackland,  43  Mo.  139;  Wynn  165,  per  Wagner,  J.     The  judgment  in 

V.  Corry,  43  Mo.  301 ;  Gray  v.  Payne,  43  this  case  comments  on  and  condemns  the 

Mo.  203  ;  Bobb  v.  Woodward,  42  Mo.  482 ;  leading  decisions  referred  to  in  the  two 

Peyton   v.   liose,  41   Mo.  257;  Walker's  preceding  notes;  and,  although  it  deals  too 

Adm'r  i;.  Walker,  25  Mo.  367  ;  Magwire  leniently    with   the    gross   mistakes   into 

V.   Tvler,  47   Mo.    115,  127;    Rutherford  which  Holmes  J.  had  fallen  in  announc- 

V.  WiUiams,  42  Mo.   18,   23 ;   Fithian   v.  ing  the  doctrine  of  those  prior  cases,  yet 

Monks,  43  xMo.  502,  517.  it  squarely  overrules  their  central  princi- 

•^  Gott  l:  Powell,  41  Mo.  416  ;  Moreau  pie,  and  destroys  their  authority. 
V.  Detchemendy,  41  Mo.  431.  *  Noonan  v.  Orton,  21  Wise.  283;    Su- 

8  Henderson  v.  Dickey,  50  Mo.  161,  pervisors  v.  Decker,  30  Wise.  624,  626, 


UNION    OF   LEGAL    AND   EQUITABLE   REMEDIES.  99 

§  80.  The  next  case  to  be  considered  is  the  same  in  principle, 
and  nearly  so  in  all  its  features,  with  the  one  just  discussed. 
The  plaintiff,  as  in  the  last  instance,  possesses  primary  rights,  both 
legal  and  equitable,  arising  from  the  same  subject-matter  or  trans- 
action, and  is  entitled  to  some  equitable  relief,  reformation,  can- 
cellation, specific  performance,  and  the  like,  and  to  legal  relief 
based  upon  the  assumption  that  the  former  relief  is  awarded  ;  he 
avers  all  the  necessary  facts  in  his  pleading,  and  demands  both 
the  remedies  to  which  he  is  entitled.  The  court,  instead  of 
formally  conferring  the  special  equitable  remedy  and  then  proceed- 
ing to  grant  the  ultimate  legal  remedy,  may  treat  the  former  as 
though  accomplished,  and  render  a  simple  common-law  judgment 
embracing  the  final  legal  relief  which  was  the  real  object  of  the 
action.!  This  proceeding  is  plainly  the  same  in  principle  with 
the  one  stated  in  the  foregoing  paragraph  ;  but  it  is  a  more  com- 
plete amalgamation  of  remedies,  a  more  decided  departure  from 
the  notions  which  prevailed  under  the  former  system.  By  the 
omission  of  the  intermediate  step,  the  actual  result  is  reached  of  a 
legal  remedy  based  upon  an  equitable  primary  right  or  title.  No 
doubt  tiiis  omission  of  the  intermediate  step  is  often  as  advanta- 
geous to  the  plaintiff  as  though  it  had  been  taken  in  the  most 
formal  manner ;  but,  on  the  contrary,  it  will  sometimes  happen 
that  the  formal  change  of  his  equitable  title  into  a  legal  one  by  a 
decree  of  cancellation,  or  of  specific  performance  or  reformation, 
will  be  necessary  to  secure  and  protect  his  rights  in  the  future. 
As  a  matter  of  safety  and  prudence,  the  particular  form  of  judg- 
ment just  described  should  only  be  used  in  actions  upon  executory 
contracts  where  a  pecuniary  payment  exhausts  their  efiiciency ; 
in  actions  involving  titles  to  land  the  full  judgment  —  embracing 
the  equitable  relief  as  well  as  the  legal  remedy  of  possession  — 
would  generally  be  far  preferable.     The  rule  permitting  such  a 

per  Dixon  C.  J. ;  Horn  v.  Luddington,  32  for  a  breach  of  tlie  covenant  In  it.     The 

Wise.  73.     The  first  of  these  eases  was  judgment  of  Dixon  C.  J.  in  Supervisors 

an  action  brought  to  compel  the  specific  v.  Decker  is  an  exhaustive  discussion  of 

performance  of  an  agreement  to   give   a  this  subject,  witti  a  review  of  tlie  leading 

lease.      The    complaint    also    alleged   a  authorities.     Altliough  there  is  much  in 

breach  of  a  covenant  which  was  to  have  his  opinion  that  is  correct  and  admirable, 

been  contained  in  the  lease,  and  demanded  he  reaches,  as  his  main  conclusions,  posi- 

a  judgment  for  tlie  damages  arising  there-  tions  which  are  in  direct  conflict  with  the 

from  as  well  as  for  the  specific  perform-  letter  as  well  as  the  spirit  of  the  codes. 
ance.     Held,  that  the  two  could  not  be         '  Bidwell  v.  Astor  Ins.  Co.,  16  N.  Y. 

combined ;  that  the  plaintiff  must  first  ob-  263,  267  ;  Pliillips  v.  Gorhani,  17  N.  Y.  270 ; 

tain  the  lease,  and  then  bring  his  action  Caswell  v.  West,  3  N.  Y.  Sup.  Ct.  383. 


100  CIVIL   REMEDIES. 

single  legal  remedy  has  been  applied  in  the  following  among 
other  instances :  in  an  action  upon  an  insurance  policy  which  by 
mistake  was  so  drawn  that  the  plaintiff — the  assured  —  had  no 
claim  for  damages,  he  demanded  judgment  (1)  reforming  the  in- 
strument, (2)  recovering  $7,000  for  a  loss  embraced  within  its 
terms  as  thus  reformed,  and  the  court  ordered  a  judgment  merely 
for  the  amount  of  the  loss  as  claimed  ;  ^  in  an  action  to  recover 
lands  of  which  the  plaintiff  had  the  equitable  title  only,  the  legal 
title  being  in  the  defendant  by  means  of  a  deed  of  conveyance 
from  the  plaintiff's  ancestor,  the  former  owner,  regular  on  its 
face,  but  alleged  to  have  been  obtained  by  fraudulent  representa- 
tions, instead  of  directing  a  cancellation  of  this  deed  and  a 
reconveyance  to  the  plaintiff,  the  court  granted  a  judgment  for 
the  recovery  of  possession  directly  ;  ^  in  an  action  upon  a  contract 
for  the  building  of  a  house  according  to  certain  specifications, 
the  complaint  alleging  a  mistake  in  the  specifications  as  set  out 
in  the  written  instrument,  and  averring  a  performance  according 
to  the  specifications  actually  agreed  on  by  the  parties,  and  de- 
manding judgment  for  the  amount  due  for  such  services  without 
praying  for  any  reformation  of  the  contract,  the  action  in  this 
form  was  sustained,  and  it  was  expressly  held  that  no  prayer  for 
a  correction  was  necessary.^  The  rule  here  stated,  and  the  deci- 
sions which  sustain  it,  are  plainly  in  direct  opj)osition  to  the  doc- 
trine which  originally  prevailed  in  the  Missouri  courts,  and  which 
still  receives  the  approval  of  the  Wisconsin  judges. 

§  81.  Another  case,  varying  in  some  of  its  circumstances  from 
the  two  which  have  been  described,  and  yet  depending  upon  the 
same  principle,  remains  to  be  considered.  If  the  plaintiff  pos- 
sesses, or  supposes  himself  to  possess,  primary  rights,  both  legal 
and  equitable,  arising  from  the  same  subject-matter  or  transaction, 
and  avers  the  necessary  facts  in  his  j)leading,  and  prays  for 
both  the  remedies  corresponding  to  the  two  different  rights,  but 
on  the  trial  fails  to  establish  his  equitable  cause  of  action  and  his 
consequent  right  to  the  equitable  remedy,  his  action  should  not 
be  therefore  dismissed ;  he  should  recover  the  legal  judgment 
which  the  legal  cause  of  action  demands.*     Thus,  in  an  action  on 

1  Bidwell  V.  Astor  Ins.  Co.,  16  N.  Y.  action  to  recover  possession  of  land,  and 

263.  for  an  injunction  ;  Sternberger  v.  McGov- 

'^  Phillips  V.  Gorham,  17  N.  Y.  270.  ern,  56  N.   Y.  12,  21,  15  Abb.  Tr.  n.  s. 

3  Caswell  V.  West,  3  N.  Y.  Sup.  Ct.  257,  271, —specific  performance  and  dam- 

383.  ages. 

*  McXeady  v.  Hyde,  47  Cal.  481,  483,— 


UNION   OF  LEGAL   AND   EQUITABLE   REMEDIES.  101 

a  policy  of  insurance,  all  the  necessary  facts  being  alleged,  the 
complaint  demanded  a  money  judgment  on  account  ot  a  loss,  and 
also  that  the  instrument  should  be  reformed  by  reason  of  an 
alleged  mistake,  which  reformation,  if  made,  would  increase  the 
sum  insured,  and  enable  the  plaintiff  to  recover  a  larger  amount. 
On  the  trial  he  failed  to  prove  the  averments  respecting  the  mis- 
take, and  Avas  not,  therefore,  entitled  to  any  equitable  relief. 
The  New  York  Court  of  Appeals  held  that  judgment  should  have 
been  recovered  on  the  legal  cause  of  action  for  the  sum  which 
was  actually  insured,  and  reversed  the  ruling  below  which  had 
dismissed  the  action. ^  As  another  illustration :  in  an  action  by 
the  grantor  of  land  against  the  grantee  to  set  aside  the  deed  of 
conve3^ance  on  the  ground  that  it  was  procured  by  false  and 
fraudulent  representations,  after  setting  out  all  the  facts  which 
constituted  the  transaction,  the  complaint  prayed  for  two  reme- 
dies in  the  alternative,  —  (1)  damages  for  the  deceit,  (2)  cancel- 
lation and  a  reconveyance.  A  reconveyance  was  found  to  be 
impossible  on  the  trial,  because  the  defendant  had  conveyed  the 
premises  to  bona  fide  purchasers.  A  simple  legal  judgment  for 
the  damages  caused  by  the  deceit  was  granted,  and  was  held  to 
be  proper  b}^  the  general  term  of  the  New  York  Supreme  Court.^ 
This  rule  is  now  established,  except  in  the  one  or  two  States 
which  retain  the  distinctions  between  legal  and  equitable  actions; 
but  there  are  some  earlier  dicta^  and  even  decisions  opposed  to 
it,^  which,  however,  must  be  considered  as  overruled.* 

§  82.  In  each  of  the  foregoing  instances  the  complaint  has 
stated  all  the  necessary  facts  constituting  both  grounds  for  relief, 
and  has  actually  demanded  both  remedies  in  the  prayer  for  judg- 
ment. Another  case  presents  itself  with  a  change  of  features. 
The  averments  of  fact  are  the  same,  but  the  plaintiff  demands 
only  the  special  equitable  remedy  to  which  he  deems  himself 
entitled.  On  the  trial  he  fails  to  prove  the  alleged  grounds  for 
equitable  relief,  but  does  establish  a  case  for  the  legal  relief 
which  was  not  demanded  in  the  prayer  for  judgment,  although 
all  the  necessary  facts,  from   which    the  remedial  right  arose, 

1  N.  Y.  Ice  Co.  V.  N.  W.  Ins.  Co.,  23  head-note  is  not  sustained  by  the  decision 
N.  Y.  357,  359.  of  this  case.     A  dictum  of  Mr.  J.  Emott, 

2  Graves  v.  Spier,  58  Barb.  349,  383,  at  p.  76,  is  the  sole  ground  for  it ;  and 
384;  and  see  Sternberger  v.  McGovern,  even  this  dictum  is  not  so  broad  as  the 
15  Abb.  Pr.  n.  s.  257,  271,  56  N.  Y.  12.  head-note. 

3  See  Penn.  Coal  Co.  v.  Del.  &  Hudson         *  See  Davis  v.  Morris,  36  N.  Y.  569. 
Canal  Co.,  1  Keyes,  72.      The  reporter's 


102 


CIVIL   REMEDIES. 


were  averred.  It  is  now,  after  some  hesitation,  settled  that  even 
in  this  case  the  phaintiff  is  not  to  be  dismissed  from  court,  but 
shoukl  be  permitted  to  recover  the  legal  remedy  supported  by 
the  allegations  of  fact  contained  in  the  complaint  or  petition.^ 
There  are  dicta  in  opposition  to  this  rule,^  but  they  are  all  over- 
ruled by  the  subsequent  and  more  authoritative  decisions  in  the 
same  States.  In  Missouri  this  liberal  doctrine  has  not  been 
adopted,  since,  as  has  been  already  seen,  the  j)rinciple  of  uniting 
legal  and  equitable  causes  of  action  and  remedies  in  one  suit  has 
been  rejected  in  all  its  phases.  The  modification  of  its  earlier 
notions,  which  the  Supreme  Court  of  that  State  has  made  in  its 
latest  decisions,  does  not  necessarily  extend  to  the  case  under 
consideration.^  The  Supreme  Court  of  Wisconsin  seems,  also,  to 
have  abandoned  the  position  which  it  originally  occupied  in  ref- 
erence to  the  particular  subject  in  question,  and  now  refuses  to 
award  a  legal  remedy  to  a  plaintiff  who  has  only  demanded 
equitable  relief.'* 


1  Marquat  v.  Marquat,  12  N.  Y.  336 ; 
Barlow  v.  Scott,  24  N.  Y.  40,  45;  Cuff  y! 
Borland,  55  Barb.  481  ;  Graves  v.  Spier, 
58  Barb.  349 ;  Tenney  v.  State  Bank,  20 
Wise.  152;  Foster  v.  Watson,  16  B.  Men. 
377,  387 ;  Leonard  v.  Rogan,  20  Wise. 
540;  White  v.  Lj-ons,  42  Cal.  279.  In 
Leonard  v.  Rogan,  Dixon  C.  J.  said  (p. 
542)  :  "If  tlie  plaintiff  demands  relief  in 
equity  when  upon  the  facts  stated  he  is 
only  entitled  to  a  judgment  at  law,  or 
vice  versa,  his  action  does  not  as  formerly 
fail  because  of  the  mistake.  He  may 
still  have  the  judgment  appropriate  to 
the  case  made  by  the  complaint."  In 
White  V.  Lyons,  Mr.  Justice  Crockett  (at 
p.  282),  states  the  general  doctrine  in  a 
very  accurate  and  compreliensive  manner, 
and  a  quotation  from  his  judgment  will 
be  found  ante,  in  note  to  §  70. 

-  See,  for  example,  Mann  v.  Fairchild, 
2Keyes,  106,  111;  Haywood  v.  Buffalo, 
14  N.  Y.  534,  540.  Neither  of  these  cases 
decides  the  point  stated  by  the  reporter  in 
Mann  v.  Fairchild ;  but  each  contains  a 
dirtiim  which  is  certainly  strong  enough. 
In  the  former,  Potter  J.  says  :  "  If  a  party 
brings  an  equity  action  even  now  wlien 
the  same  court  administers  both  systems 
of  law  and  equity,  the  party  must  main- 
tain   his    equitable   action   on    equitable 


grounds  or  fail,  even  though  he  may 
prove  a  good  cause  of  action  at  law  on 
the  trial."  This  proposition  is  certainly 
incorrect  {/"  the  parti/  has  averred  his  legal 
cause  of  action,  even  though  he  may  not 
have  demanded  the  legal  remedy  thereon. 

3  Myers  v.  Field,  37  Mo.  434.  As  to 
the  extent  of  the  recent  modification,  see 
Henderson  v.  Dickey,  50  Mo.  161. 

*  Horn  V.  Luddington,  32  Wise.  78. 
The  complaint  alleged  moneys  advanced 
and  services  rendered  by  plaintiff  to  de- 
fendant under  an  oral  agreement  that 
the  latter  would  convey  certain  lands, 
and  demanded  judgment  for  a  specific 
performance.  Deciding  that  no  case  was 
made  out  for  a  specific  performance,  the 
court  also  held  that  the  plaintiff  could  not 
recover  for  the  moneys  advanced  and  the 
services  rendered  ;  and  that  in  such  an 
equitable  action  a  legal  remedy  could  not 
be  obtained,  relying  upon  the  authority  of 
Supervisors  v.  Decker,  30  Wise.  624,  626. 
The  conflict  between  this  ruling  and  that 
of  the  same  court  in  Leonard  v.  Rogan, 
20  Wise.  540,  542,  is  direct.  I  make  no 
attempt  to  reconcile  them.  See  Dickson 
V.  Cole,  34  ib.  621,  625  ;  Turner  v.  Pierce, 
34  ib.  058,  665  ;  Deery  v.  McClintock,  31 
ib.  195. 


UNION   OF   LEGAL   AND    EQUITABLE   REMEDIES.  103 

§  83.  The  phases  and  combinations  to  which  the  liberal  prin- 
ciple has  thus  far  been  applied  have  resembled  each  other  in  this, 
that  in  all  of  them  the  plaintiff  was  clothed  with  a  double  reme- 
dial right  and  both  a  legal  and  an  equitable  cause  of  action ;  in 
those  which  are  now  to  be  examined,  the  plaintiff  claims  but  one 
remedial  right,  and  sets  up  but  one  cause  of  action.  When  the 
complaint  or  petition  alleges  a  case  which  entitles  the  plaintiff  to 
equitable  relief,  but  no  basis  for  legal  relief  is  stated,  and  prays 
a  common-law  judgment,  but  no  equitable  remedy  of  any  kind, 
if  the  case  as  alleged  is  proved  upon  the  trial  the  equitable  rem- 
edy which  is  appropriate  to  it  should  be  awarded.  Disregarding 
the  prayer  or  demand  of  judgment,  the  court  will  rely  upon  the 
facts  alleged  and  proved  as  the  basis  of  its  remedial  action. 
This  application  of  the  general  principle  has  been  made  in  a  case 
where  the  complaint  or  petition  stated  facts  entitling  the  plaintiff 
to  an  accounting  as  against  the  defendant  in  respect  of  a  joint 
undertaking,  but  not  to  a  judgment  for  a  sum  certain.  The 
prayer,  however,  was  for  the  ordinary  money  judgment.  The 
New  York  Court  of  Appeals  held  that  this  action  should  not  have 
been  dismissed,  but  that  a  judgment  for  an  accounting  should 
have  been  granted.^  The  rule  in  Missouri  seems  to  have  been 
settled  in  an  entirely  different  sense.^ 

§  84.  If,  however,  the  complaint  or  petition  contains  a  case 
entirely  for  equitable  relief,  stating  no  facts  upon  which  a  legal 
remedial  right  arises,  and  prays  a  judgment  awarding  the  equi- 
table relief  alone,  but  on  the  trial  the  plaintiff  fails  to  prove  the 
case  as  thus  alleged,  but  does  establish  a  legal  cause  of  action 
not  averred  in  his  pleading,  his  suit  must  be  dismissed ;  he  can- 
not recover  the  legal  remedy  appropriate  to  the  facts  which  he 
succeeds  in  proving.'^     There  is  no  conflict  between  this  and  any 

1  Emery  v.  Pease,  20  N.  Y.  62,  64.  See,  3  Bradley  v.  Aldrich,  40  N.  Y.  504. 
however,  Russell  v.  Byron,  2  Cal.  86  ;  This  case  is  important,  as  it  lays  down 
Buckley  v.  Carlisle,  2  Cal.  420 ;  Stone  v.  the  proper  limitations  upon  the  doctrine 
Fouse,  3  Cal.  292 ;  Barnstead  v.  Empire  of  some  prior  decisions  which  I  have 
Mining  Co.,  5  Cal.  299.  In  all  these  cases,  cited.  These  former  adjudications  might 
the  court,  while  holding  that  the  plaintiff  perhaps  be  wrested  from  their  true  mean- 
could  not  recover  a  judgment  for  a  certain  ing  and  claimed  to  be  authorities  for 
sum,  did  Hof  give  judgment  for  an  account-  granting  remedies  which  had  not  been 
ing.  The  question,  however,  was  not  demanded,  and  for  which  no  ground  had 
raised  ;  Blood  v.  Fairbanks,  48  ib.  171, 174.  been  alleged  in  the  pleadings.     The  facts 

2  Maguire  v.  Vice,  20  Mo.  429;  Rich-  of  this  case  and  the  language  of  the  judg- 
ardson  v.  Means,  22  Mo.  495 ;  Myers  v.  ment  should  be  carefully  noticed  in  order 
Field,  37  Mo.  434.  to  fix  the  exact  line  of  distinction  between 


104  ^  CIVIL   REMEDIES. 

of  the  preceding  propositions;  in  fact,  the  one  principle  governs 
them  all.  This  principle  is  lliat  the.  court  looks  to  the  facts 
aU('(/('d  and  proved,  and  not  to  the  prayer  for  relief.  If  the  facts 
entitling  a  party  to  a  remedy,  legal  or  equitable,  are  averred  and 
proved,  he  shall  obtain  that  remedy,  notwithstanding  his  omission 
to  ask  for  it  in  his  demand  of  judgment ;  and,  if  the  facts  were 
not  averred,  he  shall  not  obtain  the  remedy,  although  he  demanded 
it  in  the  most  formal  manner.  The  reform  legislation  has  not 
dispensed  with  the  allegations  of  fact  constituting  a  cause  of  ac- 
tion ;  on  the  contrary,  it  has  made  them,  if  possible,  more  necessary 
than  under  the  old  system.  The  converse  of  the  rule  above 
stated  is  also  true.  If  the  plaintiff  sets  forth  a  case  entirely  for 
legal  relief,  and  prays  a  legal  judgment  alone,  and  at  the  trial 
fails  to  prove  the  averments  actually  made,  he  cannot  establish 
an  equitable  cause  of  action  not  pleaded,  and  recover  an  equitable 
remedy  thereon.^ 

§  85.  The  principle  may  be  applied  in  still  another  form  or 
combination  of  circumstances.  In  a  purely  legal  action,  or,  to 
speak  more  correctly,  in  an  action  where  the  plaintiff  sets  forth 
and  mainly  relies  upon  a  legal  primary  right  or  title,  and  asks  a 
remedy  which  is  purely  legal,  he  may  still  invoke  the  aid  of  an 
equitable  right  or  title  which  he  holds,  or  of  which  he  may  avail 
himself,  in  order  to  maintain  his  contention,  and  obtain  the  legal 
relief  which  he  seeks.  This  is  a  more  indirect  union  of  legal  and 
equitable  rights  and  causes  of  action  than  exists  in  any  of  the 
instances  heretofore  discussed  ;   but  it  is  none  the  less  such  a 


union 


it  and  the  former  ones  wliich  support  the  ance  of  conflict.  In  Emery  v.  Pease,  the 
general  tloctrine  of  the  text.  The  final  complaint  stated  facts  showing  that  the 
judgment  for  damages  on  account  of  the  plaintiff  was  entitled  to  an  accounting, 
deceit  was  reversed,  because  the  complaint  although  it  prayed  for  a  money  judgment, 
contained  no  averment  of  any  damages  In  Drew  v.  Ferson,  the  pleading  set  out 
sustained,  and  not  because  a  judgment  simply  a  case  to  recover  money  laid  out 
for  ilamages  cannot  be  rendered  in  the  and  expended  ;  it  did  not  contain  any  alle- 
same  suit  which  contains  also  an  equi-  gation  upon  which  to  base  a  judgment  for 
table  cause  of  action.  The  addition  of  accounting.  In  the  former  case,  there- 
certain  averments  to  the  comjdaint  would  fore,  it  was  proper  to  grant  the  equitable 
have  made  this  case  identical  with  Graves  remedy,  and  in  the  latter  it  was  proper  to 
V.  Spier,  supra.  dismiss  tiie  suit;  there  is  no  conflict. 

1  Drew  V.  Ferson,  22  Wise.  651.  This  ^  Sheehan  v.  Hamilton,  2  Iveyes,  304; 
case  resembles  P^mery  v.  Pease,  supra,  3  Abb.  Pr.  n.  s.  197.  Tliis  was  an  action 
and  migiit  be  confounded  with  it.  Tiie  to  recover  possession  of  land.  Living- 
distinction,  however,  is  plain  upon  exami-  ston,  the  original  owner,  had  demised  the 
nation,  and  at  once  removes  any  appear-  land  to  one  Taylor  by  a  perpetual  lease, 


TRIAL   OF   LEGAL    AND    EQUITABLE   ISSUES.  105 

§  86.  As  to  the  mode  of  trial  when  the  complaint  or  petition 
sets  foi'th  an  equitable  and  a  legal  cause  of  action,  there  is  some 
diversity  in  the  practice  of  the  several  States.  The  constitutions 
protecting  the  jury  trial  in  common-law  cases  in  which  it  had 
been  customarily  used,  the  defendant  may,  of  course,  insist  that 
the  legal  issues  shall  be  passed  upon  by  a  jury.  He  may  waive 
this  right  by  a  stipulation  in  writing,  by  an  oral  stipulation  made 
in  open  court,  by  failing  to  appear  on  the  trial,  and  perhaps  by 
permitting  the  trial  to  be  actually  entered  upon  without  objection. 
If  the  litigant  parties,  or  either  of  them,  assert  their  rights  as 
thus  stated,  it  is  settled  in  New  York  that  the  legal  issues  must  be 
tried  at  a  circuit  court,  or  at  a  trial  term  of  the  court  in  which 
the  action  is  pending  ;  ^  and  it  seems  that  all  the  issues,  legal  and 
equitable,  must  thereupon  be  tried  together  in  the  same  manner, 
for  it  is  said  that  "  no  provision  is  made  for  two  trials  of  the 
issues  joined  in  the  same  action."  ^  If  a  cause  is  brought  on  to 
trial  before  the  court  sitting  without  a  jury  —  in  New  York,  the 
special  term  —  as  an  equity  cause,  and  the  trial  is  commenced 
under  that  supposition,  the  defendant  not  waiving  his  right  by 
acquiescence,  and  the  court,  in  the  course  of  the  investigation, 
discovers  that  it  involves  separate  legal  issues,  the  complaint 
should  not  be  dismissed  on  that  account ;  the  trial  should  be  sus- 
pended", and  the  case  sent  to  the  Circuit  or  other  court  possessing 
a  jury.^  The  same  rule  prevails  generally  in  other  States.  A 
mistake  in  bringing  on  the  cause  for  trial  is  to  be  corrected  by 
simply  sending  it  to  the  proper  court  or  placing  it  upon  the 
proper  docket.*     In  some  of  the  States  provision  is  made  for  the 

reserving  a  rent-charge  with  a  clause  of  should  merge,  but  that  it  should  be  kept 

re-entry.     L.   assigned   this    rent-charge  alive.   The  General  Term  of  the  Supreme 

and  all  his  rights  to  Dr.  Clarke,  who  died  Court   held   that   this    doctrine   of   non- 

in  1846,  and  the  plaintiff  is  his  heir-at-  merger  was  purely  equitable,  and  could 

law.     The  action  is  brought  to  recover  not  be  invoked  by  the  plaintifl'  in  this 

the  land  on  account  of  failure  to  pay  the  legal  action,  and  that  the  plaintiff  should 

rent.     The  defence  was  as  follows  :  Tay-  have  first  established  the  rent-charge  in 

lor  had  given   a   mortgage  on  the  land  an  equitable  action,  and  then  brought  this 

which  had  been  foreclosed,  and  the  land  action  of  ejectment.     The  Court  of  Ap- 

was  bought  by  Dr.  Clarke  in  1831,  and  peals   reversed   this    decision,    and    laid 

was  by  him  conveyed  to  one  Risley  and  down  the  doctrine  of  the  text. 

from  him  by  mesne  conveyances  to  the         ^  Davis  v.  Morris,  36  N.  Y.  569 ;  Peo- 

defendant.     The   defendant's   contention  pie  v.  Albany,  &c.,  R.  R.,  57  N.  Y.  161, 

was  that  Dr.  Clarke  in  1831,  being  owner  174. 

both  of  the  land  and  of  the  rent-charge,  -  Ibid.  p.  572,  per  Grover  J. 

the  latter  merged  and  was  extinguished.  ^  n,id.  p.  573. 

In  reply,  the   plaintiff  proved  that  Dr.         *  Trustees,  &c.  v.  Forrest,  15  B.  Mon. 

Clarke  did  not  intend  that  the  rent-charge  168 ;  Foster  v.  Watson,  16  B.  Mon.  377, 387; 


106  CIVIL   REMEDIES. 

trial  of  the  issues  separately  and  at  different  times.  Tlie  equi- 
table issues  may  be  tried  first  and  the  legal  issues  afterwards,  or 
the  order  may  be  reversed  as  the  nature  of  the  case  and  the  rela- 
tions of  the  issues  seem  to  require.^ 

SECTION    FOURTH. 

EQUITABLE  DEFENCES  TO  ACTIONS  BROUGHT  TO  ENFORCE  LEGAL 
RIGHTS  AND  TO  OBTAIN  LEGAL  REMEDIES. 

§  87.  Another  practical  effect  of  removing  the  distinction 
between  actions  at  law  and  suits  in  equity  is  shown  in  the  em- 
ployment of  equitable  defences  to  actions  brought  to  enforce 
legal  rights  and  to  obtain  legal  remedies.  The  ancient  sj^stem 
knew  of  no  such  union,  and  a  thorough-paced  lawyer  of  the  old 
school  would  have  deemed  it  incestuous.  Legal  rights  set  up  by 
the  plaintiff  must  be  met  in  the  same  action  by  legal  rights  set 
up  by  the  defendant.  If  the  defendant,  when  prosecuted  in  an 
action  at  law,  had  an  equity  which,  if  worked  out,  would  defeat 
the  recovery,  his  only  mode  of  redress  was  to  commence  an  inde- 
pendent suit  in  chancery  by  which  he  might  enforce  his  equitable 
right,  and  in  the  mean  time  enjoin  his  adversary  from  the  further 
prosecution  of  the  action  at  law.  A  single  familiar  example  will 
illustrate  the  situation.  A.  has  entered  into  a  contract  with  B. 
to  convey  to  the  latter  a  farm  on  payment  of  the  price,  and  lets 
him  into  possession.  The  price  is  paid  in  full,  so  that  the  vendee 
is  fully  entitled  to  his  deed.  A.,  in  this  position  of  affairs,  com- 
mences an  action  of  ejectment  to  recover  possession  of  the  land. 
By  the  common-law  system  B.  would  have  no  defence  whatever 
to  that  action  ;  the  legal  title  is  in  the  plaintiff,  and  his  own  title 
and  right  to  a  deed,  being  equitable,  were  not  recognized  by  courts 
of  law  as  any  defence.  Of  course  a  municipal  law  which  did 
not  furnish  some  means  of  enforcing  B.'s  right  and  defeating  A.'s 
action  would  be  incomplete,  and  unfitted  for  a  civilized  people.  The 

Sale  V.  Crutchfield,  8  Bush.  636,  644.     If  Smith  v.  Moberly,  15  B.  Mon.  70,  73  ;  Ben- 

an  action  is  wrongly  transferred  to   the  nett  v.  Titherington,  6  Bush  (Ky.),  192. 

equity  docket  when  no   valid  equitable  See  Guernsey  v.  Am.  Ins.  Co.,  17  Minn, 

issues   arc    presented    by   the  pleadings,  104,    108 ;    Harrison  i'.  Juneau  Bank,  17 

this  is  error  which  requires  a  new  trial.  Wise.  340 ;  Du  Pont  v.  Davis,  85  Wise. 

Creager  v.  Walker,  7  Bush,  1,  3  631,  639  ;  and  see  Richmond  v.  Dubuque, 

1  Massie  v.  Stradford,  17  Ohio  St.  596  ;  &c.  R.  R.,  33  Iowa,  422,  489-491. 
Petty   V.   Mailer,   15  B.  Mon.  591,  604; 


NATURE   OF   EQUITABLE   DEFENCES.  107 

common  law  provided  a  means,  bnt  it  was  cumbrous,  dilatory, 
and  expensive.  B.  commences  a  suit  in  the  Court  of  Chancery, 
sets  forth  the  agreement  to  convey  and  all  the  other  facts  from 
which  his  equitable  title  arises,  alleges  the  pending  ejectment 
brought  by  the  vendor,  and  prays  for  the  proper  relief.  It  is  im- 
portant to  notice  the  extent  and  nature  of  this  relief,  because  it 
throws  light  upon  questions  which  now  arise  concerning  the  doc- 
trine of  equitable  defences.  The  vendee  might  content  himself 
with  asking  and  obtaining  an  injunction  which  would  stay  the 
pending  ejectment,  and  leave  him  in  possession  undisturbed  by 
that  action,  but  would  plainly  not  be  a  perfect  and  lasting  pro- 
tection in  the  future.  To  end  the  matter  and  to  secure  himself 
absolutely,  he  must  ask  and  obtain  the  affirmative  remedy  of  a 
specific  performance  and  a  conveyance  from  A.  to  himself.  This 
being  done,  he  is  armed  with  the  legal  title,  and  can  defend  a7iy 
legal  action  brought  against  him  by  the  vendor  or  his  heirs  or 
grantees.  Nothing  could  be  devised  more  cumbrous  than  this 
double  litigation  to  enforce  one  right  and  to  end  one  controversy. 
Nothing  could  be  more  simple,  natural,  and  necessary  than  the 
reform  which  permits  the  equitable  right  to  be  pleaded  and 
proved  in  the  action  at  law ;  and  yet,  when  the  change  was  made 
by  the  legislature,  experienced  and  learned  lawyers  and  judges 
denounced  it,  and  strove  to  render  it  merely  nominal.  Even  at 
the  present  day,  and  in  States  where  the  liberal  doctrine  has  been 
accepted  and  has  received  the  sanction  of  the  highest  tribunals, 
individual  members  of  the  bench  will  occasionally  raise  their 
voices  in  strenuous  opposition  ;  and  in  one  or  two  of  the  States 
an  interpretation  has  been  placed  upon  the  statute  which  confines 
its  beneficial  operation  within  the  narrowest  limits.  The  subject- 
matter  of  the  present  section  naturally  separates  itself  into  three 
divisions,  and  the  discussion  will  follow  that  order :  (1)  What  is 
an  equitable  defence  ?  (2)  When  may  an  equitable  defence  be 
interposed  in  an  action  purely  legal,  which  will  include  the 
joinder  of  equitable  and  legal  defences  in  the  same  suit?  and 
(3)  When  can  affirmative  relief  against  the  plaintiff  be  granted 
to  the  defendant  upon  the  equitable  defence  which  he  sets  up  ? 

§  88.  What  is  an  equitable  defence  ?  It  is  to  be  observed 
that  this  term  contains  two  distinct  words,  and  that  the  separate 
meaning  of  each  is  essential  to  the  complete  and  accurate  concep- 
tion of  the  whole,  —  "equitable"  and  "defence."     Equitable  is 


108  CIVIL   REMEDIES. 

used  ill  its  technical  sense  as  contrasted  with  legal ;  that  is,  the 
right  which  gives  it  its  efficacy  is  an  equitable  right,  —  a  right 
formerly  recognized  and  enforced  only  in  courts  of  equity,  and 
not  in  courts  of  law.  The  notion  involved  in  the  word  "defence  " 
is,  however,  the  most  important  to  observe.  In  its  juridical  sig- 
nification, a  defence  is  something  which  simply  prevents  or  defeats 
the  recovery  of  a  remedy  in  an  action  or  suit,  and  not  something 
by  means  of  which  the  party  who  interposes  it  can  obtain  relief 
for  himself.  If  the  codes  had  merely  in  express  language  author- 
ized the  defendant  to  set  up  equitable  defences^  but  had  not 
enacted  any  further  provisions  in  reference  to  the  subject-matter, 
the  granting  of  affirmative  equitable  remedies  to  the  defendant 
could  not  have  been  inferred  from  such  permission.  A  "  defence  " 
is  essentially  negative,  and  not  affirmative.  The  facts  from  which 
the  defensive  right  arises  may  perhaps,  in  a  proper  occasion  and 
when  employed  for  that  purpose,  be  made  the  basis  of  affirmative 
relief ;  but,  when  so  employed,  they  would  not  be  a  defence.  In 
short,  a  defence  is  not  to  be  conceived  of  as  the  means  of  acquir- 
ing positive  relief  or  any  remedy,  legal  or  equitable.  When, 
therefore,  the  statute  permits  an  equitable  defence  to  be  inter- 
posed in  a  legal  action,  it  merely  contemplates  the  fact  that  the 
equitable  right  averred  shall  prevent  the  plaintiff  from  recovering 
the  legal  remedy  he  is  pursuing  by  his  action.  If  to  this  nega- 
tive effect  is  added  the  privilege  of  obtaining  an  affirmative  judg- 
ment against  the  plaintiff,  based  upon  the  same  equitable  right, 
the  latter  so  far  ceases  to  be  a  "  defence,"  and  becomes  in  turn 
a  cause  of  action.  The  action  itself  thus  assumes  a  double 
aspect ;  each  litigant  party  in  this  respect  becomes  an  actor,  and 
each  a  defendant.  This  analysis  may  appear  to  be,  and  certainly 
is,  elementary  and  familiar  ;  but  it  is  needed  to  clear  up  some 
confusion  and  difficulties  into  which  certain  courts  have  fallen  in 
reference  to  the  subject  under  consideration.  These  courts,  as 
will  be  seen  in  the  sequel,  would  restrict  the  operation  of  the 
reform  to  those  cases  in  which  the  defendant  asks  and  obtains 
some  specific  affirmative  equitable  relief  against  the  plaintiff;  in 
other  words,  to  those  cases  in  which  the  equitable  right  relied 
upon  by  the  defendant  is  not  used  as  a  defence  at  all,  but  is  averred 
as  a  true  cause  of  action.  This  construction  is,  as  it  seems  to  me, 
a  palpable  error,  and  it  deprives  the  legislative  provision  of  half 
its  efficacy. 


NATURE    OP    EQUITABLE    DEFENCES.  109 

§  89.  A  few  years  ago  the  British  Parliament,  among  its  many- 
legal  reforms,  enacted  that  in  England  an  equitable  defence  might 
be  pleaded  in  an  action  at  law.  In  giving  construction  to  this 
remedial  statute,  the  English  courts  of  law  held  that  no  such 
defence  was  admissible,  —  in  other  words,  they  would  recognize 
and  enforce  no  such  defence,  —  unless  it  were  of  such  a  nature 
that  courts  of  equity,  in  accordance  with  their  well-settled  doc- 
trines, would,  if  the  same  facts  were  set  out  in  a  bill  of  complaint, 
grant  an  immediate  injunction  restraining  the  further  prosecution 
of  the  action  at  law.  This  construction  of  course  destroyed  the 
practical  utility  of  the  statute.  The  American  courts  have  not 
followed  this  extremely  narrow  interpretation. 

§  90.  A  defence  is  a  right  j)ossessed  by  the  defendant  arising 
from  the  facts  alleged  in  his  pleadings  which  defeats  the  plain- 
tiff's claim  for  the  remedy  which  he  demands  by  his  action.  An 
equitable  defence  is  such  a  right  which  was  originally  recognized 
by  courts  of  equity  alone.  A  concise  and  accurate  definition 
was'  given  by  one  of  the  members  of  the  New  York  Court  of 
Appeals  in  an  early  case.  "  Under  the  head  of  equitable 
defences  are  included  all  matters  which  would  before  have  au- 
thorized an  application  to  the  Court  of  Chancery  for  relief  against 
a  legal  liability,  but  which  at  law  could  not  be  pleaded  at  bar. 
The  facts  alleged  by  way  of  defence  in  this  action  would  have 
been  good  cause  for  relief  against  the  judgment  in  a  court  of 
chancery  [the  suit  was  brought  on  a  judgment],  and  under  our 
present  system  are,  therefore,  proper  matters  of  defence."^ 
Another  judge  said  in  the  same  case :  "  An  equitable  defence 
to  a  civil  action  is  now  as  available  as  a  legal  defence.  The 
question  now  is,  Ought  the  plaintiff  to  recover  ?  and  any  thing 
which  shows  that  he  ought  not  is  available  to  the  defendant, 
whether  it  was  formerly  of  equitable  or  of  legal  cognizance."  ^ 
I  need  not  pursue  this  analysis  further ;  the  instances  in  which 
equitable  defences  have  been  sustained,  as  given  in  the  cases  here- 
after cited,  will  explain  and  illustrate  their  nature  more  clearly 
than  any  abstract  definition  or  description. 

§  91.  Express  as  is  the  language  of  the  statutes,  and  well 
established  as  is  the  juridical  nature  of  "  defence  "  in  general,  the 
doctrine  has  been  strenuously  maintained,  and  is  supported  by 

1  Dobson  V.  Pearce,  12  N.  Y.  156,  166,  2  Dobson  v.  Pearce,  12  N.  Y.  156, 168, 
per  Allen  J.  per  Johnson  J. 


110 


CIVIL    REMEDIES. 


the  decisions  of  respectable  courts,  that  a  defendant  cannot  avail 
himself,  as  a  defence,  of  facts  entitling  him  to  equitahle  relief 
against  the  plaintiff's  legal  cause  of  action,  unless  he  does  it  by 
demanding  and  obtaining  that  specific  remedy  whicli,  when 
granted,  destroys  the  cause  of  action  ;  in  other  words,  he  cannot 
invoke  the  right  as  long  as  he  treats  it  and  relies  vjxjn  it  as  a 
defence.  If  he  does  not  institute  a  sei)arate  action  based  upon 
his  equitable  right,  and  recover  the  specific  relief  therein,  and 
restrain  the  pending  action  at  law,  he  must  at  least,  in  the  answer 
pleaded  to  that  action  at  law,  affirm ativelj'  demand  the  equitable 
remedy,  and  this  remedy  must  be  conferred  upon  him.  If  he 
simply  avers  the  facts  as  a  negative  defence,  he  will  not  be  per- 
mitted to  rely  upon  them,  and  to  defeat  the  plaintiff's  recovery  by 
that  means.  Certain  of  the  cases  which  announce  this  doctrine, 
together  with  the  reasoning  by  which  it  is  sustained,  Avill  be 
found  in  the  foot-note.^     The  error  of  this  doctrine  has  already 


1  FoUett  V.  Heath,  15  Wise.  601  ;  Con- 
ger V.  Parker,  29  Ind.  380  ;  Hicks  v.  Shep- 
pard,  4  Lans.  335,  337 ;  Cramer  v.  Ben- 
ton, 60  Barb.  216.  See,  also,  Kenyon  v. 
Quinn,  41  Cal.  325;  Lombard  v.  Cowham, 
34  Wise.  486,  492;  Dewey  v.  Hoag,  15 
Barb.  365.  As  this  doctrine  is  insisted 
upon  in  these  cases  with  great  emphasis, 
and  as  some  of  tliem  are  very  recent,  and 
are  in  direct  opposition  to  other  decisions 
in  the  same  States,  I  shall  give  tlie 
views  of  the  courts  at  length.  Follett  v. 
Heath  was  an  action  to  recover  posses- 
sion of  chattels.  The  defendant  answered 
by  way  of  equitable  defence.  He  claimed 
the  chattels  under  a  chattel  mortgage, 
given  thereon  by  the  plaintiff,  which  was 
intended  to  secure  a  certain  note  executed 
by  the  plaintiff,  which  had  become  ilue  ; 
but  by  mutual  mistake  it  was  made  to 
secure  another  note  of  the  plaintifl'  which 
was  not  yet  due.  The  answer  asked  in 
the  usual  form  for  a  return  of  the  goods 
which  had  been  taken  by  the  plaintiff, 
but  did  not  pray  for  a  reformation  of  the 
mortgage.  Tliis  answer,  it  was  held,  dis- 
closed no  defence  to  the  action.  In  his 
judgment,  Paine  J.  said  (p.  602)  :  "  It  is 
true  that  equitable  defences  may  now  be 
interposed.  But  the  facts  here  sought  to 
be  interposed  do  not  constitute  any  ecjui- 
lable  defence,  if  they  were  established. 
The  papers  having  been  made  wrong  by 


mistake,  the  parties  are  bound  by  them 
unless  they  take  some  appropriate  method 
to  correct  the  mistake.  Tiiat  method  is 
not  to  prove  the  mistake  in  an  action  at 
law,  and  have  the  same  benefit  as  though 
the  instruments  were  reformed  ;  but  it  is 
to  bring  an  equity  action  to  reform  the 
instrument,  so  that  it  can  have  its  proper 
legal  effect.  .  .  .  Equity  aids  in  such  cases 
by  reforming  the  contract,  not  by  giving 
effect  to  it  without  being  reformed."  Tiie 
learned  judge  here  speaks  as  though  the 
ancient  system  of  separate  equity  and 
common-law  jurisdictions  still  existed  in 
full  force  and  effect,  and  as  though  the 
legislature  had  not  made  its  sweeping 
reform  by  combining  the  two  into  one 
mode  of  administering  justice.  In  Conger 
r.  Parker  the  complaint  alleged  a  convey- 
ance from  defendant  to  plaintiff,  by  a 
deed  containing  tiie  usual  covenants,  of  a 
farm  on  which  were  several  growing 
crops, — naming  them,  —  among  which 
was  a  crop  of  wheat ;  and  tiiat  defendant 
took  and  converted  these  crops  to  his 
own  use.  The  answer  set  up  an  agree- 
ment that  the  wheat  crop  was  to  be  ex- 
cepted from  the  conveyance,  but  that  by 
mistake  this  exception  was  omitted  from 
the  deed.  Tiiere  was  no  prayer  for  a  refor- 
mation. The  court  held  this  answer  bad  : 
( 1 )  because  it  did  not  go  to  tiie  whole  cause 
of  action,  and  (2)  as  stated  by  Frazer  J., 


NATURE   OP   EQUITABLE   DEFENCES. 


Ill 


been  demonstrated.     A  defence  is  a  negative  resistance,  an  ob- 
stacle, a  something  which  prevents  a  recovery,  whether  it  be  equi- 

couid  not  avail  himself  of  his  right  us  a 
defence.  Cramer  v.  Benton  was  also  an 
action  to  recover  land.  The  premises  in 
question  were  originally  owned  by  defend- 
ant and  his  brother  Lewis  B.  in  common  ; 
they  executed  deeds  of  partition ;  in  one 
deed  defendant  conveyed  ail  his  interest 
in  the  premises  in  question  and  other 
lands  to  Lewis  B.,  and  through  divers 
mesne  conveyances  the  same  were  finally 
conveyed  to  tiie  plaintiff,  the  defendant, 
however,  remaining  in  possession  during 
the  entire  period.  The  answer  alleged  a 
mistake  in  the  original  deed  from  defend- 
ant to  his  brother  Lewis  by  means  of 
which  the  premises  were  improperly 
included  therein,  and  that  this  mistake 
had  been  repeated  in  each  deed  down  to 
the  one  which  transferred  the  title  to 
tlie  plaintiff.  Keither  the  brother  Lewis 
B.  nor  any  of  the  intermediate  owners 
were  parties.  On  the  trial  the  defence 
was  established,  and  the  complaint  was 
dismissed  without  any  affirmative  relief 
to  the  defiendant.  Talcott  J.  delivered  the 
opinion  of  tiie  General  Term  on  Appeal, 
and,  after  quoting  the  section  of  the  code 
which  expressly  permits  equitable  de- 
fences, he  proceeds  (p.  225) :  "  This  seems 
to  have  been  construed  to  embrace  equi- 
table causes  of  action  affecting  the  equi- 
table right  of  the  plaintiff  to  enforce  his 
legal  cause  of  action,  and  probably  such 
was  the  intention  of  the  provisions  referred 
to.  In  this  enlarged  sense  an  equitable 
defence  or  counter-claim  to  a  legal  cause 
of  action  can  mean  nothing  less  than  such 
a  state  of  facts  and  parties  as  would 
induce  a  court  of  equity  to  interfere,  and 
restrain  the  prosecution  of  the  action  at 
law."  He  goes  on  to  hold  that  there 
must  be  such  a  case  as  would  induce  a 
court  of  equity  to  reform  tlie  deed ;  not 
that  an  actual  judgment  of  reformation 
must  necessarily  be  pronounced  if  the 
defendant  waives  it,  or  does  not  demand 
such  full  relief,  but  there  must  be  the 
same  facts  which  would  be  the  basis  of 
such  a  decree  giving  that  affirmative 
relief.  In  tiie  present  case  a  court  of 
equity  would  not  grant  the  relief,  be- 
cause the  proper  parties  were  not  before 
the   court.      Judge    Talcott    avoids    the 


p.  381 :  "  The  answer  is  bad  for  another 
reason.  When  a  mistake  in  a  deed  or  otiier 
written  instrument  is  relied  on,  the  plead- 
ing should  go  further  than  is  done  in  this 
case.  It  sliould  have  prayed  affirmative 
relief,  that  the  instrument  be  reformed, 
so  as  to  show  the  contract  intended  to 
have  been  embodied  in  it,  and  that,  when 
so  reformed,  it  might  be  allowed  as  a  bar 
to  the  suit,  or  to  so  much  thereof  as  it 
would  bar.  This  might  be  done  by  an 
answer  in  the  nature  of  a  cross-bill  in 
equity.  It  is  not  necessary,  under  the 
code,  to  bring  an  independent  suit  for  the 
purpose  as  it  was  formerly  when  the  orig- 
inal suit  was  at  law."  The  Indiana  court 
here  lays  down  a  more  precise  and  posi- 
tive rule  than  was  done  in  tlie  Wisconsin 
case,  which  leaves  it  doubtful  whether  the 
defendant  can  obtain  affirmative  relief  in 
the  original  action  upon  his  answer,  or 
whether  he  must  bring  a  separate  equi- 
table suit  for  that  purpose.  Hicks  v. 
Sheppard  and  Cramer  v.  Benton  are  two 
quite  recent  decisions  of  the  general  term 
of  the  Supreme  Court  in  New  York,  the 
opinion  in  each  being  delivered  by  the 
same  judge.  They  are  in  such  direct  an- 
tagonism with  several  judgments  of  the 
highest  tribunal  of  that  State  that  they 
naturally  require  a  special  notice.  The 
first  was  an  action  to  recover  lands,  the 
plaintiff  claiming  under  a  deed  from  de- 
fendant to  H.  and  M.,  wiio  were  the 
grantors  of  the  plaintiff  by  a  deed  with  a 
covenant  of  warranty.  The  answer  al- 
leged, as  an  equitable  defence,  that  the 
deed  from  defendant  to  H.  and  M.  included 
the  lands  in  question  through  a  mistake, 
and  prayed  a  reformation.  On  the  trial, 
the  court  found  the  mistake,  sustained 
the  defence,  and  held  the  plaintiff  not 
entitled  to  recover;  but  from  the  absence 
of  the  proper  parties  the  deed  to  H.  and 
M.  could  not  be  reformed  in  that  action. 
The  General  Term  on  Appeal  held,  in 
an  opinion  delivered  by  Talcott  J.  (p. 
337),  that  the  defence  was  based  solely 
upon  defendant's  right  io  have  his  own 
deed  aclaallj/  reformed;  that  such  affirma- 
tive relief  could  not  be  granted  in  this 
action,  because  H.  and  M.  were  not  par- 
ties thei-eto;    and,   therefore,    defendant 


112 


CIVIL   REMEDIES. 


table  or  legal.  If  every  equitable  defence,  in  order  to  be  avail- 
able, must  consist  in  an  affirmative  recovery  of  specific  relief 
against  the  plaintiff,  or  at  least  in  the  right  to  recover  such  relief 
if  the  defendant  choose  to  enforce  it,  for  exactly  the  same  reasons, 
and  with  exactly  the  same  force,  it  might  be  said  that  every 
legal  defence,  in  order  to  be  available,  must  consist  of  an  offset 
or  counter-claim.  In  fact,  the  codes  without  exception  recognize 
the  correctness  of  the  rule  stated  in  the  text.  The  sections 
which  prescribe  the  form  and  contents  of  the  answer  enumerate 
"defences,"  legal  and  equitable,  and  counter-claims.  A  recovery 
of  equitable  relief  by  defendant  is  as  truly  a  counter-claim  as  the 
recovery  of  pecuniary  damages ;  ^  and  the  statute  thus  expressly 


exactly  contrary  ruling  of  the  Court  of 
Appeals  in  Dobson  v.  Pearce,  12  N.  Y. 
156,  and  Pliillips  v.  Gorliam,  17  N.  Y. 
270,  by  asserting  that  the  point  in  ques- 
tion was  not  brought  to  the  attention  of 
that  high  tribunal  when  they  made  tlieir 
decisions  in  those  cases.  The  doubtful 
and  hesitating  manner  in  which  the 
learned  judge  speaks  of  equitable  de- 
fences in  general  at  the  commencement 
of  the  above  quotation  is  somewhat  re- 
markable in  the  face  of  the  express  re- 
quirements of  the  statute,  and  of  repeated 
decisions  made  by  the  courts  of  this  and 
other  States  in  giving  construction  there- 
to. The  conclusion  at  which  he  arrives 
is  in  exact  opposition  to  the  very  ratio 
decidendi  of  the  Court  of  Appeals  in  the 
cases  referred  to ;  and  the  assumption 
that  the  real  point  involved  in  the  discus- 
sion had  escaped  the  attention  of  that 
court  is,  to  say  the  least,  gratuitous. 
The  fallacy  running  through  the  whole 
judgment  is  tiie  confounding  of  facts 
and  rights  arising  therefrom  used  dcferi- 
siveli/,  and  the  same  facts  used  as  the  basis 
of  aJfiniKitiri'  relief.  In  Kenyon  v.  Quinn, 
41  Cal.  325,  which  was  an  action  to  recover 
land,  the  plaintiff  held  the  legal  title  in 
trust  for  tiie  defendant,  while  the  defend- 
ant held  tlie  equitable  title,  and  could 
have  compelled  a  conveyance;  but  the 
defendant  did  not  plead  any  of  these  facts, 
nor  any  equitable  defence,  in  his  answer. 
The  court  held  that  an  equitable  title 
must  be  i)lea(k'd,  and  appropriate  relief 
must  be  demanded,  in  the  answer  ;  and, 
this  not  being  done,  the  defence  could  not 
be  proved.     The  same  point  was  decided 


in  Cadiz  v.  Majors,  33  Cal.  288  ;  Clark  v. 
Lnckwood,  21  Cal.  220.  The  position 
here  taken,  to  the  effect  that  affirmative 
relief  must  be  demanded  in  the  answer,  is 
a  mere  dictum.  The  objection  that  the 
defendant  had  omitted  to  set  up  his  equi- 
table defence  at  all  plainly  disposed  of 
tlie  whole  case.  The  question  is  put  at 
rest  in  California.  Bruck  v.  Tucker,  42 
Cal.  852  ;  Miller  v.  Fulton,  47  Cal.  146. 
Later  Wisconsin  cases  have  settled  the 
rule  for  that  State ;  and,  in  fact,  a  special 
provision  of  the  code  leaves  no  doubt. 
R.  S.  ch.  141,  §  7,  expressly  requires  the  de- 
fendant, in  pleading  an  equitable  defence, 
to  demand  such  affirmative  relief  as  he  is 
entitled  to.  In  Lombard  v.  Cowham,  34 
Wise.  486,  492,  the  court  said,  "  The 
defence,  being  an  equitable  one,  to  be 
available  in  an  action  of  ejectment,  must 
be  set  up  in  the  answer,  and  be  accom- 
panied by  a  demand  for  such  relief  as  the 
defendant  supposes  himself  entitled  to. 
A  mere  equitable  f/t/e)'ce  is  not  sufficient  ; 
there  must  be  a  counter-claim  also."  It 
was  further  said  that  Kent  v.  Agard,  24 
Wise.  378,  does  not  conflict  with  this  doc- 
trine. See  Du  Pont  v.  Davis,  35  Wise. 
634,  639 ;  Hills  v.  Sherwood,  48  Cal.  386, 
392.  In  Minnesota  it  is  said  that  an 
equitable  defence  in  an  action  to  recover 
land  must  be  so  strong  and  clear  an  equi- 
table title  in  the  defendant  as,  in  the  ab- 
sence of  fraud  or  mistake,  to  entitle  him 
to  a  decree  for  a  conveyance  on  a  bill  for 
that  purpose.  McClane  v.  White,  5  Minn. 
178,  190. 

'  See  infra,  chap,  iv.,  sec.  6.     Affirma- 
tive  relief   will   of   course  be    given   in 


EXAMPLES    OP   EQUITABLE   DEFENCES.  Il3 

distinguishes  between  equitable  defences  as  such  and  the  recovei'ies 
of  affirmative  equitable  relief.  The  cases  which  will  be  referred 
to  in  subsequent  paragraphs  show  that  the  overwhelming  weight 
of  authority  sustains  the  doctrine  which  I  have  stated  as  the  cor- 
rect construction  of  the  codes. 

§  92.  I  now  pass  to  the  consideration  of  the  cases  in  which 
equitable  defences  have  been  admitted.  It  will  be  impossible  to 
state  any  exhaustive  rule  derived  from  the  decisions  thus  far  made 
by  the  courts ;  for  it  cannot  be  supposed  that  they  have  exhausted 
the  instances  in  which  this  species  of  defence  is  proper.  There 
does  not  seem  to  be  any  limit  to  the  use  of  such  defences  other 
than  is  found  in  the  very  nature  of  equity  jurisprudence  itself. 
Whenever  equity  confers  a  right,  and  the  right  avails  to  defeat 
a  legal  cause  of  action,  —  that  is,  shows  that  the  plaintiff  ought 
not  to  recover  in  his  legal  action,  —  then  the  facts  from  which 
such  right  arises  may  be  set  up  as  an  equitable  defence  in  bar. 
There  can  be  no  other  limitation,  unless  we  would  defeat  the 
plain  intent  of  the  statute,  and  return  to  the  old  method  of  grant- 
ing to  the  defendant  a  decree  in  equity  from  which  a  legal  defence 
may  arise.  The  following  cases  are  intended  as  illustrations  and 
examj^les  rather  than  as  a  full  enumeration  of  the  possible  instances 
in  which  the  defence  may  be  interposed. 

§  93.  In  an  action  brought  to  recover  damages  for  the  breach 
of  covenants  contained  in  a  deed  of  conveyance,  the  defendant 
may  set  up,  as  an  equitable  defence,  a  mistake  in  the  instrument 
which  should  be  corrected  ;  as,  for  example,  in  such  an  action  on 
a  covenant  against  incumbrances,  the  alleged  breach  being  an 
outstanding  mortgage,  the  defendant  may  show  the  original 
agreement  to  except  such  mortgage  from  the  operation  of  the 
covenant,  and  that  by  mistake  the  exception  was  omitted.^  In 
an  action  upon  a  judgment  recovered  against  the  defendant,  the 
latter  pleaded  that  the  judgment  was  originally  obtained  by 
fraud,  and  that  he  had  instituted  a  suit  in  equity  against  the 
judgment  creditor  in  the  State  of  Connecticut,  in  which  the  judg- 
ment had  been  decreed  to  be  void,  and  its  enforcement  had  been 
enjoined.     These  facts   constituted  a  perfect   equitable  defence 

proper    cases.      As    an    illustration,  see  New  York  Court  of  Appeals  held  in  this 

Blake  v.  Buflfalo  Creek  K.  R.,  56  N.  Y.  case  that  the  defendant  could  set  up  this 

485,  493,  494  ;  Bailey  v.  Bergen,  4  N.  Y.  matter  as  a  defence,  but  could  not  have  any 

Sup.  Ct.  642.  affirmative  relief.     This  latter  position  has 

^  Haire  v.  Baker,  5  N.  Y.  357.     The  been  since  abandoned  by  the  court. 


114  CIVIL    REMEDIES. 

and  complete  bar  to  the  action.^  In  an  action  to  recover  damages 
for  the  non-performance  of  an  executory  contract  to  run  a  steam- 
boat on  a  certain  route  for  the  plaintiff,  the  answer  alleged  a  mistake 
in  drawing  the  contract  by  which  a  proviso  was  omitted  that  would 
have  excused  the  defendant's  failure  to  perform,  and  prayed  a  re- 
formation. The  New  York  Court  of  Appeals  sustained  the  defence, 
saying :  "  The  court  below  clearly  erred  in  holding  that  the 
equitable  defence  could  not  be  tiied  in  this  action.  That  it  could 
be  is  too  thoroughly  settled  to  admit  of  further  dispute."  ^  The 
defence  may  arise  from  facts  occurring  subsequent  to  the  joinder 
of  issue,  and  require  to  be  interposed  in  a  supplemental  answer. 
On  the  day  of  trial  of  an  action  for  work  and  labor,  the  parties 
met,  had  a  negotiation,  and  settled  the  controversy,  by  the  terms 
of  which  settlement  the  suit  was  to  be  abandoned.  The  plain- 
tiff afterwards  repudiating  the  compromise  and  proceeding  with 
the  trial  of  the  cause,  the  defendant,  after  tendering  performance, 
was  permitted  to  set  up  the  facts  in  a  supplemental  answer ;  and 
it  was  held  that  they  constituted  a  perfect  equitable  bar.^ 

§  94.  The  action  to  recover  possession  of  land  —  analogous  to 
ejectment —  is  the  one  in  which  the  equitable  defence  is  the  most 
frequent ;  and  here,  of  course,  it  assumes  a  great  variety  of  shapes.* 
Those,  however,  which  are  the  most  common  are  the  right  to  a 
correction  of  either  the  plaintiff's  or  the  defendant's  muniments 
of  title  because  of  mistakes  therein ;  the  right  to  a  specific  per- 
formance by  the  plaintiff  of  his  contract  to  convey  the  land  ;  and 
the  right  to  a  cancellation  of  a  conveyance  on  the  ground  of 
fraud.     These  three  classes  of  defences  are   found  in  numerous 

I  Dobson  V.  Pearce,  12  N.  Y.  156,  165.  ed,  and  it  would  seem  that  none  was  pos- 

This  is  tlie  leading  casein  New  York.     It  sible;  tlie  arrangement  was  oral,  and    a 

fully  establishes  the  doctrine  tliat  an  equi-  specific   pertbrmance   by   reducing  it  to 

table  defence    may  be  pleaded  as  a  bar,  writing  would   have   been   useless;   and 

when  no  affirmative   relief  is  asked,    or  there  could  be  no  specific  performance  of 

could  be  granted  if  asked.     The  ratio  ded-  the  snhstatice  of  the  agreement. 
deiuliv/ns  tersely  summed  up  by  Johnson        *  An  answej  setting  up  a  mortgage  of  the 

J.    "  The  question  now  is,  Ought  tlie  plain-  land  in  question,  given  by  the  plaintiff  or 

tiff  to  recover  ?  and  any  thing  which  shows  his  predecessors,  default  in   payment  of 

tliat  lie  ought  not  is  available  to   the  de-  the  debt  secured  thereby,  and  possession 

fendant,  whetlier  it  was  formerly  of  equi-  of  the  land  by  defendant  under  the  mort- 

table  or  legal  cognizance."  gagee,  states  a  good  equitable  defence  to 

^  I'itclier  V.  Hennessey,  48  N.  Y.  416,  an  action  brought  to  recover  possession 

422.      In  tills  case   the  defendant  asked  of  the  premises.     Harrington  v.  Fortner, 

and  obtained  tlie  reformation  58  Mo.  4G8,  474  ;  Hubble  v.  Vaughan,  42 

3  Kelly  V.  Dee,  2  N.  Y.   Sup.  Ct.  286.  Mo.  138;  Maxwell  r.   Campbell,  45  Ind. 

Ko  affirmative  relief  was  asked  or  grant-  360,  363 ;  Hammond  v.  Perry,  38  Iowa.  217. 


EXAMPLES   OP   EQUITABLE    DEFENCES.  115 

forms  according  to  tlie  different  circumstances  which  may  arise 
in  the  transactions  of  life  and  the  affairs  of  business ;  but  they 
may  all  be  reduced  to  the  same  general  principle.  In  some 
instances  the  equitable  rights  have  been  admitted  in  a  purely 
defensive  character,  and  in  others  the  judgment  has  awarded 
affirmative  relief  to  the  defendant.  In  one  case,  the  plaintiff 
having  proved  title  in  himself  by  means  of  a  deed  from  the  con- 
ceded original  owner,  the  defendant,  by  way  of  an  equitable  bar, 
alleged  that,  prior  to  the  plaintiff 's  conveyance,  he  had  purchased 
of  the  said  owner  several  parcels  of  land,  including  the  one  in 
question,  that  the  deed  fi'om  such  original  owner  should  have 
contained  a  description  of  the  premises  claimed  by  the  plaintiff, 
but  by  mistake  it  was  omitted.  This  defence  was  sustained  as 
an  equitable  bar  without  an  actual  reformation  of  defendant's 
deed  ;  ^  and  in  the  same  manner  a  mistake  in  a  deed  from  the 
plaintiff  to  the  defendant,  by  which  the  land  in  suit  was  omitted, 
may  be  made  the  basis  of  an  equitable  defence  without  any  actual 
reformation  asked  or  granted.^  The  title  of  the  plaintiff  in 
another  similar  action  being  claimed  under  a  sheriff's  deed  given 
in  pursuance  of  a  sale  on  execution  against  the  original  owner, 
the  defence  was  that  at  the  sale  the  sheriff  expressly  excepted 
the  parcel  of  land  in  question  therefrom,  that  his  certificate  and 
deed  omitted  such  exception  and  included  a  description  of  the 
premises  by  mistake,  and  that  the  owner  subsequently  conveyed 
to  the  defendant.  The  court,  on  the  defendant's  demand,  re- 
formed the  plaintiff's  deed,  and  admitted  the  defence.^  In  a  sim- 
ilar action,  where  the  plaintiff's  title  was  through  a  sheriff's  deed, 
executed  to  him  as  purchaser  at  an  execution  sale  against  the 
person  who  was  the  admitted  source  of  title,  the  defendant 
pleaded,  as  an  equitable  defence,  an  equitable  mortgage  arising 
prior  to  the  inception  of  the  judgment  lien,  and  his  own  possession 
under  the  same.  These  facts  were  held  to  constitute  a  good 
defence  without  affirmative  relief  asked  or  granted.* 

1  Crary  v.  Goodman,  12  N.  Y.  266,  equitable  mortgagee,  so  tliat  his  posses- 
268.  ^ee  also  Guedici  v.  Boots,  42  Cal.  sion  under  it  would  be  a  good  equitable 
452,  456.  defence,  stated  the  rule  in  a  very  accurate 

2  Hoppough  V.  Struble,  2  N.  Y.  Sup.  and  condensed  manner,  per  Denio  J.  (p. 
Ct.  664.  586)  :    "  But,  since  the  blending  of  legal 

3  Bartlett  v.  Judd,  21  N.  Y.  200,  203.       and  equitable  remedies,  a  different  rule 
*  Chace  v.  Peck,  21  N.  Y.  581.    The    must  be  applied.     The  defendant  can  de- 

court  having  first  decided  that  the  facts     feat  the  action  upon  equitable  principles  ; 
alleged    constituted    the    defendant    an    and  if,  upon  the  application  of  these  prin- 


116  CIVIL   REMEDIES. 

§  9o.  Equitable  defences  arc  very  frequent  in  actions  brought 
to  recover  possession  of  lands  by  the  vendors  against  the  vendees, 
when  an  agreement  to  convey  the  land  in  question  has  been 
entered  into.^  As  illustrations,  the  following  have  been  upheld : 
when  the  complaint  alleged  the  non-payment  of  the  purchase 
price  at  the  stipulated  time,  and  a  consequent  forfeiture,  the 
defence  that  the  time  of  payment  had  been  extended  by  an  oral 
agreement,  and  that  a  tender  had  been  duly  made  in  comj:)liance 
with  such  agreement ;  ^  in  an  action  in  all  respects  the  same  on 
the  part  of  the  plaintiff,  the  defence  that  a  tender  had  been  made 
and  kept  good,  the  court  expressly  refusing  to  grant  the  affirma- 
tive relief  of  specific  performance  to  the  defendant.^  The  vendee's 
right  to  possession  under  a  contract  to  convey  is  a  very  familiar 
species  of  equitable  defence  to  actions  brought  to  recover  the 
land  by  the  vendor.*  In  an  action  by  the  grantee  of  the  vendor, 
who  took  with  constructive  notice  of  the  defendant's  interest, 
the  right  of  the  vendee's  assignee  to  possession  and  to  a  deed 
of  conveyance  is  a  good  equitable  defence  in  bar.^  To  an  action 
for  the  foreclosure  of  a  mortgage  executed  by  the  defendant  to 
the  plaintiff 's  assignor,  the  answer  alleged  a  mistake  in  the  in- 
strument in  relation  to  the  terms  and  times  of  payment,  claiming 
that,  when  corrected,  nothing  would  be  due,  and  demanded  the 
affirmative  relief  of  a  reformation.  This  remedy  was  granted  by 
the  court,  although  the  mortgagee  was  not  a  party  to  the  action.^ 
In  pleading  an  equitable  defence,  all  the  facts  should  be  averred 
which  are  necessary  to  the  existence  of  the  equitable  right.     In 

ciples,  the  plaintiff  ought  not  to  he  put  into  to  lands,  brouglit  by  a  vendor  in  posses- 

possessioii  of  the  premises,  he  cannot  recover  in  sion  against  tlie  vendee,  the  rights  of  the 

the  action."    The  principle  so  concisely  and  latter  under  his  contract  do  not  constitute 

clearly  enunciated  is  a  complete  answer  an   equitable    defence   for    the    trespass, 

to  the  reasoning  of  Mr.  Justice  Talcott,  which  was  an  entry  upon  the  land  under  a 

quoted  siipra  in  the  note  to  §  91.     See  claim  of  right  founded  upon  the  contract ; 

McLane  v.  White,  5  Minn.  178  ;  Richard-  in  other  words,  the  contract  does  not  give 

son  V.  Bates,  8  Ohio  St.  257,  264.  the  vendee  a  right  of  enlri/,  although  it 

1  In  Cavalli  v.  Allen,  57  N.  Y.  508,  would  be  an  equitable  defence  to  an  ac- 
614,  it  was  held  that  the  vendee  in  posses-  tion  brought  to  recover  the  land  if  he  was 
sion  may  set  up,  as  an  equitable  defence,  already  in  possession.  Creager  v.  Walk- 
the  same  equitable  rights  which  he  could  er,  7  Bush,  1,  3. 

have  enforced  had  he  brought  an  action  ^  Talbert   v.    Singleton,   42   Cal.  390, 

for  a  specific  performance.  395,    390  ;    Cavalli    v.   Allen,    57   N.    Y. 

2  Cythe  V.  Fountain,  51  Barb.  186, 188.     508. 

■*  Harris  v.  Vinyard,  42  Mo.  568.  "^  Andrews  v.  Gillespie,  47  N.  Y.  487, 

*  Petty  V.    Malier,    15  B.    Mon.    604 ;  490.     The  objection  of  the  want  of  the 

Onson  V.  Cown,  22  Wise.  329.  But  it  is  held  mortgagee  as  a  party  was  expressly  taken 

in  Kentucky  that  in  an  action  for  trespass  and  as   expressly    overruled,    the    court 


EXAMPLES    OF    EQUITABLE    DEFENCES.  117 

many  instances  this  right  is,  from  the  nature  of  the  case,  a  right 
to  affirmative  remedy ;  and,  whether  this  remedy  is  demanded 
or  not,  the  answer  should  contain  all  the  substantial  facts  that 
would  be  found  in  a  cross-bill  in  chancery.^ 

§  96.  These  defences  are  not,  however,  confined  to  actions 
involving  the  title  to  lands,  or  those  brought  upon  contracts 
relating  to  land ;  they  are  proper  in  actions  based  upon  mercan- 
tile agreements,  and  in  all  others  where  an  equity  may  arise  and 
affect  the  rights  of  the  parties.  The  complaint  in  an  action 
upon  a  promissory  note  demanded  judgment  for  a  certain  bal- 
ance unpaid.  A  defence  that  the  note  was  given  upon  a  settle- 
ment, and  that  by  mistake  the  amount  was  made  too  large  by  a 
certain  sum  which  was  more  than  the  unpaid  balance  claimed  by 
the  plaintiff,  was  held  a  good  equitable  bar  to  the  action,  without 
any  specific  relief  demanded  or  awarded  ;  ^  and  in  an  action  upon 
a  policy  of  reinsurance  the  recovery  was  defeated  by  the  fact,  set  up 
in  defence,  that  the  same  person  acted  as  agent  for  both  the  parties 
in  procuring  the  policy  to  be  issued,  and  that  his  agency  for  the 
plaintiff  was  unknown  to  the  defendant  at  the  time.^  Here,  also, 
no  affirmative  relief  was  granted  ;  nor  could  any  have  been  given 
except  cancellation  of  the  policy,  which  would  certainly  have 
been  entirely  useless.  The  assignee  of  a  lease  bringing  an  action 
for  the  rent,  the  defendant  averred  that  the  assignment  to  the 
plaintiff,  although  absolute  in  form,  was  in  fact  given  as  collateral 

holding  that  he  was  not  a  necessary  party  versing  s.  c.  17  Barb.  530.     See  Becker 

in  order  to  a  judgment  of  reformation.  v.  Sandusky  City  Bk.,  1  Minn.  311. 

1  See  Bruck    v.  Tucker,  42  Cal.  346,  3  ;jj.  y.  Central  Ins.  Co.  v.  Nat.  Pro- 

352,  per  Wallace  J.  "  It  must  be  considered  tection  Ins.  Co.,  14  N.  Y.  85;  20  Barb, 

as  settled  [in  California]  tliat,  in  interpos-  468.    This  case  was  peculiar.    The  defence 

ing  such  a  defence,  the  defendant  becomes  established  was  not  averred,  but  the  an- 

an  actor,  and    the  defence   interposed  a  swer  was  merely  a  denial,  s<aying,  "They 

pleading   in    equity,   the    sufficiency     of  deny  that  they  made  and  executed  a  pol- 

whicli,  in  matter  of  substance,  though  not  icy  of  insurance,  or  delivered  the  same  to 

in  point  of  mere  form,  is  to  be  determined  the  plaintiff,  as  stated  in   the  said  com- 

by  the  application  of  the  rules  of  pleading  plaint."     On  the  trial  the  evidence  estab- 

observed  in  courts  of  equitj'^  in  cases  of  like  lishing  the  defence  stated  in  the  text  was 

character."    Cites,  as  decisive  of  this  rule,  admitted    without     objection ;    and     the 

Estrada  y.  Murphy,  19  Cal.  272;  Lestrade  Court  of  Appeals  held  that  however  im- 

i;.  Barth,  19  Cal.  G60;    Weber  y.  Marshall,  proper  under  tlie  answer  if  objected  to, 

19  Cal.  447  ;    Blum  v.  Robinson,  24  Cal.  as  the  plaintiff   had  failed    to   object,    it 

127;  Downer  v.  Smith,  24  Cal.  114.     See  could  not  raise  the  objection  in  the  Ap- 

Hughes  y.  Davis,  40  Cal.    117;    Arguello  pellate  Court.     The  result  was  that  a  de- 

V.  Edinger,  10  Cal.  150 ;    Clark  v.  Huber,  fence  conceded  to  be  purely  equitable  was 

25  Cal.  593,  597.  proved  under  a  denial  only.     See  obser- 

-  Seeley   v.  Engell,  13  N.  Y.  512,  re-  vations  of  Denio  J.  quoted  in  note  to  §  70. 


118  CIVIL   REMEDIES. 

security  for  the  payment  of  a  note,  that  the  note  had  been  paid, 
and  that  the  interest  of  the  plaintiff  had  thereby  ended.  This 
defence  was  sustained,  and  here,  also,  no  affirmative  relief  could 
have  been  essential  to  the  defendant's  security  or  protection 
under  any  circumstances  ;  the  judgment  in  his  favor  was  a  bar 
to  all  possible  further  action  on  the  lease  by  the  plaintiff  or  his 
assigns.^  In  all  the  foregoing  instances  the  single  equitable 
defence  has  been  spoken  of  as  though  it  stood  alone,  unconnected 
with  any  others.  An  equitable  defence,  however,  may  be  joined 
with  any  other  defences,  legal  or  equitable,  which  may  possibly 
arise  in  the  action.  In  many  of  the  cases  referred  to  in  the  text 
and  cited  in  the  notes,  other  defences  were  spread  upon  the 
record.  Thus,  in  the  action  upon  a  policy  of  insurance  any  of 
the  customary  legal  defences  of  misrepresentations,  breach  of  war- 
ranties, non-compliance  with  provisions  of  the  policy  in  regard  to 
proofs,  and  the  like,  might  have  been  pleaded  and  proved  in 
connection  with  the  equitable  defence  which  was  interposed.^ 

§  97.  The  remaining  question  to  be  considered  is.  When  will 
affirmative  equitable  relief  be  granted  to  the  defendant  upon  the 
facts  which  he  alleges  in  his  answer  as  constituting  an  equitable 
bar  to  the  plaintiff's  recover}^  ?  The  New  York  Court  of  Appeals, 
in  an  early  case,  expressly  held  that  in  an  action  upon  a  covenant 
against  incumbrances  in  a  deed  of  lands,  brought  to  recover  dam- 
ages for  a  breach  thereof  by  means  of  an  outstanding  mortgage, 
the  defendant  may  show,  by  way  of  equitable  defence  in  bar,  a 
mistake  in  the  deed  by  which  an  exception  of  that  very  mort- 
gage was  omitted  from  the  covenant,  l3ut  that  he  could  not  have, 
in  that  action  and  upon  an  answer  setting  up  all  these  facts,  the 
affirmative  relief  of  reformation.  The  case  was  decided,  and  the 
judgment  sustained,  expressly  upon  this  distinction.^  This  deci- 
sion, however,  cannot  be  regarded  as  correct  in  the  light  of  other 
subsequent  adjudications  made  by  the  same  court  and  referred  to 
in  the  foregoing  paragraphs.  Affirmative  relief  may  certainly 
be  given  to  the  defendant  upon  his  answer  in  all  cases  where, 
from  the  nature  of  the  subject-matter  and  from  the  relations  of 
the  parties,  a  specific  remedy  in  his  favor  is  possible  according  to 

1  l)esi)anl  v.  Walbriiljre,  15  N.  Y.  374,  192;  Dorse3-   v.  Reese,  14  B.  Mon.   157; 

378  ;    Struman    v.   Kobb,   37    Iowa,    311,  Smith  v.  :\Ioberley,  15  B.  Mon.   70,  73  ; 

813;  Hablitgel  v.  Latham,  35  ib.  550.  Bosley  v.  Mattingley  14  B.  Mon.  89,  91. 

-'  See  Bennett  v.  Titherington,  6  Bush,         3  Haire  v.  Baker,  5  N.  Y.  357  (1851), 


AFFIRMATIVE   RELIEF   TO    THE   DEFENDANT.  119 

the  doctrines  of  equity  jurisprudence,  certainly  in  all  cases  where 
the  answer  can  be  considered  as  setting  up  a  counter-claim. 
There  are  undoubtedly  instances  in  which  no  such  relief  is  pos- 
sible.^ Where,  however,  the  nature  of  the  subject-matter  and  of 
the  relations  between  himself  and  the  plaintiff  are  such  that  he 
could  have  maintained  an  independent  suit  in  equity  against  the 
plaintiff  and  procured  specific  relief  thereby,  or  could  have  filed 
a  cross-bill  under  the  old  practice,  he  may  now  obtain  the  same 
remedy  upon  his  answer,  at  all  events,  as  was  before  remarked, 
if  the  demand  alleged  in  the  answer  constitutes  a  valid  counter- 
claim. This  is  undoubtedly  the  general  rule.  In  a  very  few  States, 
however,  cross-complaints  or  petitions  are  expressly  recognized 
by  the  codBs  in  addition  to  counter-claims ;  and  the  rule  in  those 
States  may  be  that,  if  the  demand  for  equitable  relief  do  not  con- 
stitute a  proper  counter-claim,  it  must  be  made  in  a  cross-com- 
plaint or  cross-petition,  and  not  in  an  answer.  Subsequently  to  the 
decision  of  Haire  v.  Baker,^  in  New  York,  the  Court  of  Appeals 
held,  by  way  of  dictum  in  Dobson  v.  Pearce,'^  that  the  defendant 
may  obtain  affirmative  relief  upon  the  answer  which  he  pleads 
to  the  plaintiff's  cause  of  action.  Finally,  the  doctrine  was 
expressly  established  as  the  basis  of  the  decision.  In  an  action 
to  recover  possession  of  land,  where  the  plaintiff  held  his  title  by 
a  sheriff's  deed  given  upon  a  sale  under  execution  against  the 
original  owner,  the  defendant  not  only  defeated  the  recovery  by 
proving  a  mistake  in  the  sheriff's  deed,  but  obtained  a  judgment 
reforming  that  deed  by  correcting  the  mistake.*  While  in  some 
States  the  answer  may  be  turned  into  a  cross-petition,  and  affirm- 

1  The  case  of  Despard  v.  Walbridge,  On  the  trial  tlie  complaint  was  dismissed, 
cited  supra,  seems  to  be  sucli  a  one.  but  the  remedy  of  reformation  was  denied. 
The  defendant  liad  a  right  to  prevent  The  General  Term,  on  appeal,  modified 
a  recovery  against  himself  by  one  who  this  judgment  by  granting  tiie  additional 
had  no  interest  in  the  lease;  but  he  relief  of  reformation.  This  latter  ruUng 
certainly  could  not  have  enforced  a  re-  was  affirmed  by  tlie  Court  of  Appeals. 
assignment  of  the  lease  from  the  plaintiff  Bacon  J.,  after  stating  tlie  relief  which 
to  his  assignor,  nor  a  cancellation  of  tliat  would  have  been  granted  in  equity  under 
assignment,  because  he  had  no  interest  in  the  former  system,  added  :  "  But  this 
or  power  over  the  instrument  in  question  ;  resort  is  no  longer  necessary,  since  by  our 
much  less  could  he  have  obtained  any  present  system  an  equitable  defence  may 
relief  against  the  lease.  His  right  was  be  interposed  as  well  in  an  action  of  eject- 
purely  defensive.  ment  as  in  any  other  form  of  proceeding, 

^  Haire  v.  Baker,  5  N.  Y.  357.  and  the  defendant  may  also  claim  in'  the 

!•  Dobson  V.  Pearce,  12  N.  Y.  156,  165,  same    action    any   affirmative    relief   to 

per  Allen  J.  which  he  shows  himself  to  be  entitled." 

4  Bartlett  v.  Judd,  21  N.  Y.  200,  203. 


120  CIVIL   REMEDIES. 

ative  relief  obtained/  yet  this  proceeding  does  not  seem  to  be 
necessar}^  even  in  those  States  where  the  practice  provides  for 
such  cross-petition  or  cross-complaint ;  the  defendant  may  have 
the  proper  affirmative  relief  to  which  he  is  entitled  upon  his 
answer.'-^  In  Missouri,  however,  it  would  seem  that  affirmative 
equitable  relief  can  never  be  granted  to  the  defendant  upon  his 
mere  answer.^  In  extreme  contrast  with  this  position  is  the 
doctrine,  already  discussed,  which  refuses  to  the  defendant  the 
benefit  of  an  equitable  defence  as  a  bar  to  a  legal  cause  of  action, 
unless  the  facts  relied  upon  are  such  that  he  would  be  awarded 
an  affirmative  remedy  if  he  elected  to  demand  a  judgment  con- 
ferring it.'*  The  general  subject  of  affirmative  relief  to  defend- 
ants will  be  treated  more  at  large  in  the  subsequent  sections  upon 
"  Counter-claim  "  and  "  Union  of  Defences  in  One  Answer." 


SECTION     FIFTH. 

A   LEGAL  REMEDY   OBTAINED    UPON   AN   EQUITABLE   OWNERSHIP 
OR  EQUITABLE  PRIMARY  RIGHT. 

§  98.  A  special  case,  arising  from  the  general  union  of  legal 
and  equitable  forms  produced  by  the  new  system,  requires  a  par- 
ticular examination.  It  may  be  properly  presented  under  the 
form  of  the  question  whether  the  holder  or  possessor  of  a  purely 
equitable  primary  right,  or  the  owner  of  a  purely  equitable  estate 
or  interest,  can  maintain  an  action  to  recover  a  remed}^  which, 
before  the  change  in  procedure,  was  purel}'  legal ;  or,  to  express 
the  same  thought  in  terms  not  entirely  accurate,  but  which  are, 
nevertheless,  in  constant  use,  whether  such  holder  of  a  purely 

1  Massie  v.  Stradford,  17  Ohio  St.  596.  from  tlie  plaintiff 's  deceased  fatlier,  pay- 

Tliis  was  an  action  for  trespass  to  lands,  ment  of  the  purchase  price,  and  prayed  a 

The  defendant,  in  an  answer  b\^  way  of  specific   performance.       This    ju(lo:ment 

cross-petition,  set  up  an  equitable  title  to  was  rendered  by  the  court  at  the  trial,  and 

the  premises  in  question,  and  prayed  for  certainly  there  could  be  no  simpler  nor 

a  decree    establishiuff  the   legal   title   in  stronger  case  for  equitable  relief  to  the 

himself,    and    an   injunction   against    the  defendant  than  that  of  the  vendee  of  land 

plaintiff's  further  prosecution  of  the  action  who  is  in  possession,  and  has  paid  the  pur- 

at  law.     Hablitgol    v.  Latham,   35  Iowa,  chase  price.     The   Supreme  Court,  how- 

550;  Hammond  o.  Perry,  38  ib.  217.  ever,  while  sustaining  the  defence  as  a 

-  Klonne  v.  Bradstreet,  7  Ohio  St.  322.  bar,  refused  an)'  affirmative  remedy.  See 

'  Harris  i'.  Vinyard,42  Mo.  568.     This  State  v.  Meagher,  44  Mo.  356. 

was  an  action  to  recover  lands.     The  de-  i  See  supra,  §  91. 
fendant  set  up   a  contract  of    purchase 


THE   ACTION    OF    EJECTMENT.  121 

equitable  primary  right,  or  owner  of  a  purely  equitable  estate  or 
interest,  can  maintain  upon  it  an  action  at  law  to  recover  an 
ordinary  legal  judgment,  either  for  possession  or  for  damages ; 
to  put  the  same  question  in  a  concrete  form  by  limiting  it  to  a 
particular  class  of  rights  and  remedies,  whether  the  owner  of  an 
equitable  estate  in  land  can  maintain  an  action  analogous  to 
ejectment?  The  action  of  ejectment  was  originally  iiA'ented  to 
enable  a  tenant  for  years  to  recover  possession  of  the  demised 
premises  during  the  term,  the  ancient  real  actions  being  confined 
to  freehold  estates.  It  was,  during  its  existence  and  use  as  a  strict 
common-law  instrument,  a  possessory  action  ;  and  a  judgment  ren- 
dered in  it  never  determined  the  question  of  title.  Its  use  in  try- 
ing titles  was  wholly  a  matter  of  convenience :  no  rule  of  the 
common  law  made  it  a  means  of  settling  a  disputed  controversy 
as  to  title.  Nothing  but  the  voluntary  acquiescence  of  the 
defeated  party  enabled  it  to  pioduce  even  the  semblance  of 
such  a  result.  Action  after  action  might  be  brought,  and  the 
common  law  placed  no  obstacle  in  the  way  of  such  a  succession 
of  attacks.  Equity  alone  devised  the  cumbrous  method  of  an 
injunction  suit  to  restrain  the  further  prosecution,  and  to  quiet 
the  title  of  the  party  who  had  succeeded  in  several  trials  at  law. 
Since  the  common  law  paid  the  most  rigid  adherence  to  external 
forms,  it  is  true  that  the  action  of  ejectment,  until  changed  by 
statute,  was  never  used  except  for  the  recovery  of  demised  prem- 
ises ;  and  this  form  was  preserved  in  the  absurd  fiction  of  making 
John  Doe,  as  tenant  of  the  real  claimant,  the  plaintijff  on  the 
record.  As  the  estate  for  years,  to  protect  which  the  action  was 
originally  invented,  was  a  legal  estate,  the  rule  grew  up,  and  was 
followed  without  exception,  and  from  the  very  necessities  of  its 
form,  that  the  action  of  ejectment  could  only  be  employed  as  a 
means  of  recovering  possession  of  a  legal  estate.  The  common 
law  undoubtedly  knew  no  such  thing  as  ejectment  by  the  owner 
of  an  equitable  estate,  or  the  holder  of  an  equitable  title ;  such 
estate  or  title  could  only  be  protected  by  a  court  of  equity. 

§  99.  This  rule,  however,  was  always  a  matter  of  mere  external 
form  ;  it  was  one  of  the  formal  incidents  of  the  action,  as  arbi- 
trary and  technical  as  the  fiction  of  the  plaintiff's  being  a  lessee. 
When  the  sta,tute  abolished  all  the  distinctions  between  actions 
at  law  and  suits  in  equity  and  between  the  forms  of  such 
actions,  one  might  naturally  have  supposed  that  the  formal  rule 


122  CIVIL    RKMEDIES. 

thus  described  would  have  been  at  once  abandoned.  On  the  con- 
trary, the  courts  of  certain  States,  in  which  the  new  procedure 
has  been  adopted,  continue  to  speak  of  actions  of  ejectment  as 
though  they  were  existing  and  fully  recognized  judicial  instru- 
ments, with  all  their  ancient  and  arbitrary  incidents  and  require- 
ments ;  as  though,  in  fact,  there  had  been  no  great  change  sweep- 
ing away'the  very  foundations  of  the  ancient  system.  It  is  true, 
this  reform  legislation  has  not  altered  any  primary  rights  nor 
final  remedies ;  an  equitable  right  or  estate  is  not  turned  into  a 
legal  right  or  estate  ;  and  the  remedies  of  pecuniary  compensation 
and  of  possession  of  lands  or  chattels  which  were  called  legal 
because  they  could  only  be  obtained  by  actions  at  law,  and  the 
other  specific  kinds  of  relief  which  were  called  equitable  because 
they  could  only  be  obtained  by  suits  in  equity,  are  left  unaffected. 
One  great  change,  however,  has  taken  place  which  some  courts 
seem  at  times  to  have  forgotten  ;  all  these  remedies  are  now  to  be 
obtained  by  a  single  civil  action,  which  it  is  neither  appropriate 
to  call  legal  nor  equitable,  because  the  distinctions  between  legal 
and  equitable  actions  have  been  destroyed.  It  may  be  well 
enough,  in  order  to  avoid  circumlocution,  to  describe  one  class 
of  remedies  as  legal  and  another  as  equitable,  if  it  be  constantly 
remembered  that  this  nomenclature  no  longer  depends  upon  the 
kind  of  action  used  in  the  pursuit  of  these  remedies,  and  that 
they  are  all  pursued  and  obtained  bj'-  means  of  one  action  which 
has  no  distinctive  and  peculiar  features  depending  upon  the 
species  of  remedy  granted  through  its  instrumentality. 

§  100.  Assuming  these  elementary  doctrines  of  the  new  system  of 
procedure,  I  am  enabled,  by  applying  them,  to  answer  the  proposed 
question  upon  principle ;  I  shall  then  compare  the  results  thus 
obtained  with  the  rules  laid  down  by  judicial  decision.  It  must 
be  conceded  at  the  outset  that  every  primary  right,  whether 
legal  or  equitable,  when  invaded,  should  have  a  remedy  or  reme- 
dies appropriate  to  its  nature  and  extent.  When  the  right 
is  possessory,  there  should  be  a  remedy  which  restores  posses- 
sion ;  when  the  right  involves  the  ownership  or  title,  there  should 
be  a  remedy  which  establishes  the  ownership  or  title,  or  which 
restores  the  owner  to  his  full  dominion  by  removing  obstructions 
to  or  clouds  upon  his  title.  The  law  gives  these  classes  of  reme- 
dies ;  and  the  confusion  into  which  some  of  the  courts  have 
fallen  in  reference  to  this  subject  results  from  a  failure  to  distin- 


ACTION    FOR   POSSESSION    BY    AN    EQUITABLE   OWNER.  123 

guish  between  these  two  kinds  of  primary  rights,  and  the  two 
corresponding  kinds  of  remedies  ;  from  an  utter  confounding  of 
possessory  rights  with  rights  of  ownership,  and  possessory  reme- 
dies with  remedies  going  to  the  ownership.  Now,  it  cannot  be 
doubted  that  where  the  question  is  concerning  ownership,  where 
the  primary  right  invaded  is  one  of  ownership  or  title,  and  the 
remedy  sought  is  correlative  thereto,  the  equitable  right  must 
have  an  equitable  remedy.  If  a  person  is  clothed  with  an  equi- 
table title  or  ownership,  from  the  very  nature  of  the  case  his 
remedy  must  be  equitable,  because  the  positive  relief  which  he 
needs  in  almost  all  cases  is  the  conversion  of  this  equitable  own- 
ership or  title  into  a  legal  one,  which  can  only  be  done  by  a 
remedy  within  the  competency  of  equity  tribunals,  —  by  a  spe- 
cific performance,  a  reformation,  a  re-execution,  a  cancellation, 
and  the  like.  The  only  exception  to  the  kind  of  relief  desbribed 
—  the  turning  the  equitable  title  into  a  legal  one  —  is  the  remedy 
of  injunction,  which  is  often  necessary,  and  which  does  not  change 
the  nature  of  the  title,  but  leaves  it  as  it  was.  When,  therefore, 
the  object  of  the  action  and  of  the  remedy  demanded  relates  to 
ownership  or  title,  unqestionably  the  equitable  title  must  be 
judicially  protected  and  aided  by  a  remedy  that  is  purely  equi- 
table, and  cannot  be  thus  protected  and  aided  by  a  remedy  which 
is  in  form  legal. 

§  101.  This,  however,  is  not  true  when  the  right  is  possessory, 
and  the  remedy  demanded  is  a  mere  transfer  or  restoration  of 
possession.  There  are  equitable  primary  rights,  titles,  and  owner- 
ships which  entitle  the  holder  thereof  to  the  undisturbed  posses- 
sion of  the  land  which  is  the  subject-matter  of  the  right  or  title. 
This  proposition  cannot  be  denied.  A  large  part  of  the  remedies 
once  given  by  the  Court  of  Chancery  alone,  and  the  whole  range 
of  equitable  defences  now  allowed  in  legal  actions,  are  based 
upon  the  conception  that  the  equitable  owner  is  entitled  to  pos- 
session as  a  part  of  his  right.  To  deny  this  is  to  turn  many  of 
the  familiar  rules  of  the  law  into  absurdity,  and  to  render  much 
of  the  relief  given  by  the  courts  self-contradictory.  When  the 
vendor  under  a  land  contract  sues  the  vendee  in  possession  to 
recover  the  premises,  and  the  latter  interposes  his  equitable  right 
as  a  defence,  and  succeeds  in  defeating  the  action  brought  against 
him,  that  success  is  entirely  due  to  the  fact  that  he  is  entitled  to 
the  possession  by  virtue  of  his  equitable  title.     Now,  what  the 


124  CIVIL    REMEDIES. 

law  permits  to  be  done  defensively,  for  the  same  reason,  and  by 
the  application  of  the  same  principle,  it  should  permit  to  be 
done  affirmatively.  There  is  no  distinction  in  principle  between 
the  two  cases.  It  is  simply  absurd  to  say  that  a  person  in  posses- 
sion under  an  equitable  title  may  defend  and  be  kept  in  his  pos- 
session by  exhibiting  that  title  in  a  legal  action,  but  that,  if  he  is 
out  of  possession,  he  shall  not  be  allowed  to  recover  his  rightful 
possession  l)y  exhiljiting  his  title  in  the  same  kind  of  action.  In 
fact,  when  the  courts,  with  almost  perfect  unanimity,  decided 
that  the  equitable  owner  may  rely  on  his  title  as  an  absolute  bar 
—  a  merely  negative  defence  —  to  the  so-called  action  of  eject- 
ment brought  against  him,  they  decided  in  principle  that  he  may 
obtain  possession  in  the  like  action.  Whenever,  therefore,  a  per- 
son clothed  with  an  equitable  title  or  ownership  which  by  its 
nature  entitles  him  to  the  immediate  possession  of  the  land,  as 
against  the  party  actually  in  possession,  and  he  desires  simply  to 
obtain  the  possession,  there  is  nothing  in  principle  which  can  for- 
bid him  to  maintain  an  action  for  that  purpose,  and  recover  the 
possession.  To  call  such  an  action  "  legal"  is  no  answer  ;  for  the 
rule  which  forbade  an  equitable  right  or  title  to  be  enforced  or 
even  recognized  in  a  court  of  law  was  a  mere  arbitrary  matter 
of  form,  and  has  been  expressly  abolished.  To  call  the  action 
"  ejectment  "  is  no  answer,  because  there  is  no  such  action,  and 
all  the  technical  rules  which  prevailed  in  respect  to  it  at  the 
common  law  have  been  swept  away  by  the  legislative  command. 
The  courts  which  now  speak  of  "  ejectment "  as  an  existing 
species  of  action,  and  which  apply  its  rules  to  an  action  now 
brought  to  recover  possession  of  land,  are  so  far  disregarding  the 
express  terms  of  the  statute,  and  thwarting  its  plainest  design. 
It  is  true  that  all  equitable  ownerships  and  titles  do  not  carry 
with  them  the  right  of  immediate  possession  of  the  land,  and 
this  argument  is  carefully  limited  to  those  which  do  involve  this 
element  in  their  proper  nature.  It  might  seldom  happen  that 
the  equitable  owner  would  be  satisfied  with  a  mere  possessory 
remedy,  but  there  are  circumstances  and  situations  in  which,  and 
parties  against  whom,  such  remedy  may  be  verj^  important,  and 
may  perhaps  be  the  only  one  practicable.  To  illustrate  by  the 
most  familiar  and  plain  example,  that  of  a  vendee  under  a  con- 
tract to  convey  land.  Assume  such  an  agreement  completely 
fulfilled  by  the  vendee.     He  is  the  equitable  owner,  and  entitled 


ACTION    FOR   POSSESSION   BY   AN   EQUITABLE    OWNER.  125 

to  possession  as  against  the  vendor,  and  therefore  as  against  all 
the  world.  Beyond  a  doubt,  as  against  the  vendor,  this  equitable 
owner  would  prefer  to  bring  an  action  to  obtain  a  specific  per- 
formance, and  thus  at  one  blow  to  consummate  his  title  and 
remove  all  obstacles  to  the  full  enjoyment  of  his  ownership  ;  but, 
if  he  chooses  to  ask  for  a  part  instead  of- the  whole,  upon  what 
grounds  of  principle,  upon  what  reasons  of  policy,  shall  the 
courts  refuse  to  award  him  the  possession  by  compelling  the  ven- 
dor, who  wrongfully  withholds,  to  surrender  it  up  ?  To  say  that 
the  vendor  has  the  legal  title  is  no  answer,  and  is  a  mere  arguing 
in  a  circle,  because  the  action  and  the  remedy  do  not  concern  the 
title,  and  by  the  conceded  rules  of  the  law  his  legal  title  does 
not  enable  the  vendor  to  retain  possession  from  the  vendee.  If, 
however,  a  third  person  without  color  of  right,  and  not  the  ven- 
dor, withholds  the  possession,  the  reasons  in  favor  of  the  vendee's 
maintaining  the  action  are  still  stronger.  Is  it  answered  that  in 
ejectment  the  defendant  may  succeed  by  proving  legal  title  out 
of  the  plaintiff,  because  the  plaintiff  must  recover  upon  the 
strength  of  his  own  title,  and  not  upon  the  weakness  of  the  de- 
fendant's ?  This,  again,  is  a  mere  formula  of  words  without  any 
real  meaning.  There  is  no  action  of  ejectment.  The  action  sup- 
posed to  have  been  brought  is  simply  one  to  recover  the  posses- 
sion to  which  the  plaintiff  is  entitled  from  a  defendant  who  has 
no  right  or  color  thereof ;  and  at  best  the  rule  invoked  is  the  arbi- 
trary result  of  external  and  technical  forms  clustered  about  the 
common-law  action,  all  of  which  have  been  swept  out  of  exist- 
ence with  the  action  itself.  Unless,  therefore,  it  is  established 
that  the  common-law  form  of  action  called  "  ejectment,"  with  all 
of  its  incidents,  still  remains  in  full  force  and  effect,  notwith- 
standing the  peremptory  provisions  of  the  statute  which  have  in 
terms  abrogated  them,  I  have  demonstrated  that  there  is  no 
reason  or  ground  in  principle  for  refusing  to  permit  the  owner  of 
an  equitable  estate,  which  entitles  him  to  immediate  possession, 
to  maintain  an  action  for  the  purpose  of  recovering  that  posses- 
sion. We  may  call  the  action  legal  or  equitable,  and  it  makes  no 
difference.  The  sum  of  the  whole  matter  is,  a  person  is  clothed 
with  a  right  over  land  which  by  its  essential  nature  confers  upon 
him  the  right  of  immediate  possession  ;  he  should  be,  and  on  prin- 
ciple is,  permitted  to  enforce  that  right  and  obtain  possession,  if 
that  remedy  is  all  he  demands,   even  though  he  might,  if  he 


126  CIVIL   REMEDIES. 

chose,  avail  himself  of  a  higher  and  more  efficient  remedy.  The 
same  course  of  argument  applies  with  equal  force  to  rights  over 
chattels  as  well  as  over  lands,  wherever  there  can  be  an  equi- 
tal)le  ownership  of  chattels. 

§  102.  I  have  now  to  compare  the  result  of  a  discussion  of  the 
question  upon  princii)le  with  the  doctrine  which  is  established 
upon  the  authority  of  decisions  thus  far  made  ;  and  I  concede  at 
the  outset  that  in  numbers  the  judicial  decisions  are  decidedly 
opposed  to  my  conclusions.  In  accordance  with  its  general 
theory,  that  a  distinction  between  legal  and  equitable  actions  is 
still  preserved,  the  Supreme  Court  of  Missouri  has  held,  in  a  long- 
series  of  cases,  that  the  owner  of  an  equitable  title  can  under  no 
circumstances  obtain  legal  relief,  but  shall  be  driven  to  two 
actions,  —  the  first  to  turn  the  equitable  into  a  legal  estate,  and 
the  second  to  obtain  possession. ^  The  same  doctrine  has  been 
established  in  Wisconsin,  and  has  been  extended  to  waste,  on  the 
ground  that  the  actions  of  ejectment  and  waste  must  be  brought 
by  one  having  the  legal  ownership,  and  that  he  must  recover  on 
the  strength  of  his  own  title.^  It  would  seem  that  the  same  rule 
had  been  adopted  in  Indiana,  although  this  is  by  no  means  cer- 
tain. A  series  of  cases  liave  held  that  a  plaintiff,  alleging  a  legal 
ownership  and  right  of  possession,  cannot  recover  upon  proof  of 
an  equitable  ownership  ;  that  an  action  to  recover  possession  of 
lands,  where  the  pleading  contains  such  averments,  is  analogous 
to  the  common-law  ejectment,  and  the  plaintiff  '•'  must  recover 
on  a  legal  title,  and  not  on  an  equitable  title."'  ^    In  California  the 

1  Reed  v.  Robertson,  45  Mo.  580,  and  sion  and  damages  for  waste,  the  corn- 
cases  cited  in  the  note  to  §  79.  See,  how-  plaint  disclosing  an  equitable  title  in 
ever,  Henderson  r.  Dickey,  50  Mo.  IGl.  the  plaintiff.  Di.xon  C.  J.  said  :  "The 
In  Reed  v.  Robertson  the  defendant  was  a  actions  of  ejectment  and  waste,  being  legal 
trustee,  and  held  the  legal  title  in  trust  to  remedies,  must  be  brought  by  the  person 
convey  the  same  to  the  plaintiff.  It  was  legally  interested  in  the  property,  and  can- 
adjudged  that  the  plaintiff  could  not  not  be  maintained  by  a  cestui  f/ue  trust,  or 
maintain  a  simple  action  for  possession, —  other  party  having  only  an  equitable  inter- 
calied  by  the  court  ejectment,— but  must  est."  Citing  1  Chitty's  Pleadings,  60,  289, 
resort  to  a  suit  in  equity  to  compel  a  per-  290.  One  might  have  supposed  that  the 
formance  of  his  trust  by  the  defendant,  code  of  procedure  had  somewhat  lessened 
The  other  case  cited  shows  that  the  the  authority  of  Chitty's  Pleadings  in  re- 
court  of  Missouri  has  modified  its  views  gard  to  the  forms  of  actions  in  that  State, 
in  relation  to  relief  of  ])ossession  accom-  3  Groves  i'.  Marks,  32  Ind.  319  ;  Rowe 
panying  other  specific  equitable  relief,  but  v.  Beckett,  30  Ind.  154  ;  Stehman  v.  Crull, 
goes  no  farther.     See  supra,  §  79,  n.  26  Ind.  436.     In  Groves  v.  Marks  the  ac- 

2  Eaton  t'.  Smith,  19  Wise.  537  ;  Gillett  tion  was  called  ejectment.  The  com- 
V.  Treganza,  13  Wise.  472,  475.  The  lat-  plaint  alleged  that  the  plaintiff  was  owner 
ter  case  was  an  action  to  recover  posses-  in  fee-simple,  and  entitled  to  possession. 


ACTION    FOR   POSSESSION    BY    AN    EQUITABLE   OWNER. 


127 


cloctiiiie  is  established  in  the  most  general  form,  that  the  holder 
of  an  equitable  title  cannot  maintain  an  action  to  recover  the 
possession,  because,  in  the  language  of  the  courts,  "  in  ejectment 
the  legal  title  must  prevail  ; "  ^  and  a  like  rule  seems  to  prevail 
in  lowa.^ 

§  103.  In  New  York  there  is  a  conflict  of  opinion,  as  shown  by 
the  reported  cases.  The  Supreme  Court  has  held,  in  accordance 
with  the  doctrine  laid  down  in  Missouri,  Wisconsin,  and  Califor- 
nia, that  the  holder  of  an  equitable  title  cannot  recover  possession, 
even  against  a  mere  intruder,  but  that  he  must  first  procure  his 
equitable  to  be  changed  into  a  legal  ownership  by  the  judgment 
rendered  in  an  equity  action,  and  thus  put  himself  in  a  condi- 
tion to  maintain  ejectment.^  The  Court  of  Appeals  in  New 
York  has  reached  a  conclusion  directly  the  contrary  in  a  case 
where  the  facts  and  the  form  of  the  proceeding  made  the  decision 
necessary  and  final.  The  ruling  was,  therefore,  not  a  dictum,  but 
was  the  very  ratio  decidendi,  and  involved  n  pt'inciple  which  fully 
sustains   the   reasoning  and  doctrine   of  the  text,  although  the 


On  the  trial  it  appeared  that  tlie  plaintiff 
was  a  vendee  under  a  land  contract. 
Gregor^'^  J.  said  (p.  320)  :  "  It  is  claimed 
that  the  plaintiff  could  recover  in  tliis 
form  of  action  on  an  equitable  title.  We 
gave  the  question  a  careful  conskleration 
in  Rowe  v.  Bennett ;  and  the  conclusion 
there  arrived  at  is  perfectly  satisfactory 
to  our  minds.  In  an  action  under  the 
code  for  the  recovery  of  real  property  on 
a  complaint  averring  the  legal  right  of  the 
plaintiff  to  the  possession,  he  must  recover 
on  a  legal  and  not  on  an  equitable  title." 
Kowe  V.  Bennett  presented  exactly'  the 
same  facts,  and  tiie  court  placed  the  deci- 
sion upon  exactly  the  same  grounds.  Steh- 
man  v.  CruU  was  also  a  case  of  the  same 
nature,  and  the  court  said  :  "  The  action  to 
recover  possession  of  real  property  under 
the  code,  where  the  complaint  is  on  tlie 
legal  title,  takes  the  place  of  the  old  ac- 
tion of  ejectment ;  and  the  plaintiff  must 
show  a  legal  title  to  the  possession  before 
he  can  recover."  The  case  was  there  put 
on  the  ground  that  there  was  a  complete 
failure  of  proof,  and  not  a  mere  variance. 
These  decisions  do  not  establish  a  doc- 
trine necessarily  opposed  to  that  which  is 
advocated  on  principle  in  the  text ;  they 
do  uol  pass  upon  the  efFtCt  of  an  action  in 


wliich  tlie  complaint  discloses  an  equi- 
table title,  and  demands  possession. 

1  Emeric  r.  Pennin;an,  26  Cal.  119, 
124  ;  Clark  r.  Lockwood,  21  Cal.  222.  See 
Hartley  v.  Brown,  46  Cal.  201 ;  Buhne 
V.  Chism,  48  Cal.  467,  472 ;  also  Morton 
V.  Green,  2  Neb.  441. 

-  Walker  v.  Kynett,  82  Iowa,  524,  526, 
per  Beck  J. :  "  It  cannot  be  claimed  that 
in  an  action  at  law  lands  may  be  recov- 
ered against  one  holding  the  legal  title 
on  the  ground  that  his  title  is  based  on 
fraud.  One  holding  such  a  title  may  suc- 
cessfully plead  it  against  the  equitable 
claim  of  another  attempted  to  be  enforced 
at  law.  In  order  to  defeat  a  fraudulent 
title,  it  must  be  attacked  in  chancery,  and 
in  tliat  Jbnim  declared  void.  A  person 
holding  the  equitable  title,  in  order  to  re- 
cover must  cause  the  adverse  legal  title 
to  be  declared  void."  But  see  Brown  v. 
Freed,  43  Ind.  253,  254-257. 

3  Peck  V.  Newton,  46  Barb.  173.  The 
plaintiff's  title  was  equitable,  in  substance 
that  of  a  vendee.  The  defendant,  so  far  as 
the  case  shows,  was  without  color  of  right. 
The  complaint  merely  demanded  posses- 
sion. See  opinion  of  Parker  J.  in  note 
to  §  68. 


128  CIVIL   REMEDIES. 

case  did  not  in  form  present  the  naked  question  under  discussion. 
A  plaintiff  who  had  only  an  equitable  title  was  permitted  to 
recover  a  judgment  for  possession,  based  upon  a  verdict,  where 
no  other  relief  was  granted,  against  a  defendant  Avho  held  the 
legal  title  under  a  deed  regular  on  its  face.  This  decision  goes 
to  the  full  length  of  the  doctrine  which  I  have  advocated ;  for, 
although  the  complaint  demanded  the  specific  equitable  relief  of 
cancellation  and  reconveyance  as  well  as  possession,  yet  on  the 
trial,  whicli  was  had  before  a  jury,  and  was  conducted  in  all 
respects  like  the  trial  of  a  legal  action,  these  demands  for  relief 
were  entirely  ignored  ;  the  single  question  of  the  plaintiff's  right 
to  possession  was  submitted  to  the  jury,  and  upon  their  verdict  a 
judgment  for  possession  was  rendered,  which  was  affirmed  by  the 
tribunal  of  last  resort. ^  In  Kansas,  under  an  express  provision 
of  the  code,  the  holder  of  an  equitable  title  may  maintain  an 
action  to  recover  possession  of  the  land.^ 

§  104.  There  is  another  class  of  actions  which  have  been 
admitted  by  some  courts  as  a  consequence  of  the  reform  legisla- 
tion, which  could  not  have  been  maintained  prior  to  the  change. 
It  was  a  familiar  doctrine  that  one  partner  could  not  maintain  an 
action  at  law"  against  a  cojjartner  to  recover  any  sum  which  was 
a  portion  of  the  firm  assets,  or  to  recover  any  sum  claimed  to  be  due 
by  virtue  of  their  common  partnership  dealing  or  joint  undertak- 
ings, unless  there  had  been  prior  to  tlie  suit  an  account  stated  and 
a  balance  agreed  upon  between  them,  or  unless  the  defendant  had 
expressly  promised  to  pay  the  sum  sought  to  be  recovered.  In  other 
words,  the  plaintiff  in  his  declaration  was  obliged  to  aver  either 
the  accounting  together  and  the  balance  struck,  or  the  express 
promise.     If  he  did  not,  he  would  be  either  nonsuited  at  the  trial 

•  Phillips   V.    Gorham,    17   N.    Y.    270.  be  true.     Although  the  Court  of  Appeals 

The  complaint  alleged  the  equitable  title  does  not  in  its  opinion  discuss  the  ques- 

in  the  plaintiff.     The  question  was  pre-  tion  in  the  form  now  presented  by  me  in 

sented    in    the   sharpest   manner   on  the  the  text,  its  decision,  as  it  seems  to  me, 

trial  by  the  requests  made  on  the  part  of  necessarily   involves    that    question,  and 

the  defendant  and  by  the  charge  of  the  answers  it  in  the  most  explicit  manner, 

court.     The  defendant  asked  tlie  court  to  If  the  complaint  had  not  contained  the 

charge  that  the  plaintiff'  was  not  entitled  prayer  for  equitable  relief,  which  was  dis- 

to  a  verdict,  that  he  should  have  procured  regarded,  the  que.stion   would  have  been 

a    judgment    declaring    the    defendant's  the  same  in  form  with  that  under  coiisid- 

deed  void,  and  tlicu  brought  an  action  for  eration.    Also,  Murray  r.  Blackledge,  71 

the  possession.     The  court   refu.^ed  this  N.  C.  492. 

request,  and  instructed  the  jury  that  the  -  Kansas  Pac.  R.  R.  v.  McBratney,  12 

plaintiff  could  recover   in    this   action   if  Kans.  9. 
the  facts  averred  by  him  were  found  to 


ACTION    BETWEEN    PARTNERS.  129 

or  his  pleading  would  be  held  insufficient  on  demurrer.  If  there 
had  been  no  such  account  stated  or  express  promise,  his  only 
remedy  was  by  an  action  in  equity  for  an  accounting ;  and,  hav- 
ing obtained  jurisdiction  of  the  matter,  the  Court  of  Chancery 
would  decree  payment  of  the  amount  due.  This  doctrine  is  too 
familiar  to  require  the  citation  of  authorities  in  its  support.  The 
Supreme  Court  of  Indiana  has  held  that  this  rule  is  abrogated  by 
the  code  of  procedure,  and  that  a  partner  may  maintain  an 
action  to  recover  a  sum  due  from  his  copartner,  by  reason  of  their 
joint  business,  without  averring  or  proving  any  settlement  or 
express  promise.^  The  same  doctrine  has  been  applied  in  Mis- 
souri to  owners  in  common  generally  who  are  not  partners.^ 
The  old  rule  is  retained,  however,  in  most  of  the  States ;  and  an 
action  by  a  partner  to  recover  a  sum  of  money  from  his  copartner, 
alleged  to  have  become  due  by  reason  of  their  joint  undertakings, 
is  not  permitted,  unless  based  upon  a  mutual  settlement  or  an 
express  promise.  It  is  so  held  in  California,^  and  in  New  York,* 
and  in  other  States ;  ^  and  this  is  beyond  doubt  the  correct  inter- 
pretation of  the  codes.  The  contrast  between  this  case  and  the 
one  previously  discussed  is  plain  ;  and  an  analysis  of  these  con- 
trasting features  will  d©  much  toward  elucidating  the  general 
principles  which  regulate  the  union  of  legal  and  equitable  actions 
and  remedies.  When  a  person  has  an  equitable  ownership  of  land 
of  a  kind  which  entitles  him  to  immediate  possession,  his  remedial 
right  to  possession  is  in  exact  conformity  with  his  primary  right  of 
ownership.  The  denial  of  this  remedy  of  simple  possession 
under  the  former  system  was  based  solely  upon  technical  and 
arbitrary  notions  incidental  to  the  mere  external  forms  of  actions 
and  modes  of  adjudication  which  prevailed  in  the  two  classes  of 
courts  ;  and  when  these  external  forms,  with  their  incidents,  were 

1  Heavilon  v.  Heavilon,  29  Ind.  509 ;  Co.,  5  Cal.  299 ;  Ross  v.  Cornell,  45  Cal. 
Shalter  v.  Caldwell,   27  Ind.  376 ;  Duck     133 ;  Pico  v.  Cuyas,  47  Cal.  174,  179. 

V.  Abbott,  24  Ind.  349.     The  last  case  is         *  Emery  v.  Pease,  20  N.  Y.  62. 
directly  in  point ;  for  the  complaint  alleged         ^  Wood  v.   CuUen,  13  Minn.  394,  397  ; 

the  partnership,  and  sought  to  recover  the  Lower  v.  Denton,  9  Wise.  268  ;  Shields  v. 

plaintiff's   share   in   the   proceeds.      See  Fuller,  4  Wise.  102 ;  Smith  v.  Smith,  33 

also  Jemison  v.  Walsh,  30  Ind.  167.    But,  Mo.  557  ;  M'Knightw.  M'Cutchen,  27  Mo. 

per  contra,  Briggs  v.  Daugherty,  48  Ind.  436 ;  Springer  v.  Cabell,  10  Mo.  640.    But 

247,  249,  seems  to  abandon  this  position.  see,  for  examples  where  an  action  may  be 

2  Rogers  v.  Penniston,  16  Mo.  432,  435.  maintained,  Whitehill  v.  Shickle,  43  Mo. 

3  Russell  y.  Byron,  2  Cal.  86;  Buckley  537;  Seaman  v.  Johnson,  46  Mo.  Ill; 
V.  Carlisle,  2  Cal.  420;  Stone  v.  Fouse,  3  Russell  v.  Grimes,  46  Mo.  410;  Buckner 
Cal.   292 ;  Barustead   v.  Empire   Mining  v.  Ries,  34  Mo.  357. 


1-30  CIVIL    REMEDIES. 

removed,  a  way  was  opened  for  redressing  the  primary  eqnital)le 
right  in  a  manner  exactl\'  conforming  with  its  own  nature  and 
extent ;  that  is,  a  primary  equitable  right  or  interest  calling  for 
possession  can  he  redressed  by  granting  possession.  In  other 
words,  the  ancient  rule  denying  to  an  equitable  owner  the  rem- 
edy of  bare  possession  in  the  cases  described  was  one  of  the 
"  distinctions  "  and  "  forms  "  in  express  terms  al^olished  by  the 
legislature  in  enacting  the  new  procedure.  Courts  which  continue 
the  denial  because  "  ejectment  could  not  be  brought  by  a  holder 
of  an  equitable  title,"  or  because  "  the  legal  title  must  prevail," 
overlook  the  real  nature  both  of  the  right  to  be  redressed  and  of 
the  remedy  to  be  conferred,  and  pay  a  regard  only  to  the  techni- 
cal notions  of  form  which  hampered  the  common-law  courts  in 
all  their  movements,  and  which  became  at  last  so  grievous  a 
restraint  upon  the  administration  of  justice  that  the  legislature 
was  compelled  to  intervene.  In  the  other  case,  however,  the 
reasons  of  the  rule  were  very  different,  and  were  founded  upon 
the  nature  of  the  primary  right  itself,  and  not  upon  any  formal  inci- 
dents of  the  judicial  proceeding  by  which  it  was  redressed.  A 
partner  is  not  suffered  to  maintain  the  action  in  question 
because  his  primary  right,  flowing  from  the  fact  of  partnership, 
is  not  of  such  a  nature  as  to  call  for  a  remedy  of  that  kind  ;  that 
is,  a  judgment  for  the  payment  of  a  certain  sum.  The  right  to 
the  recovery  of  a  certain  sum  of  money,  unless  arising  from  tort, 
must,  according  to  the  common-law,  be  based  upon  a  promise 
express  or  implied.  It  does  not  affect  this  principle  to  say  that 
the  common-law  doctrine  of  implied  promises  was  itself  largely 
founded  upon  a  fiction.  Granting  this  to  be  true,  as  it  undoubt- 
edly was,  still  the  theory  was  firmly  established  that  the  liability 
spoken  of  arose  either  from  an  express  promise  or  from  acts, 
events,  or  relations  which  created  a  duty  to  pay,  and  which  duty 
the  law  conceived  of  as  springing  from  an  implied  promise.  If 
we  discard  the  notion  of  an  implied  promise,  therefore,  as  ficti- 
tious, there  must  still  be  a  relation  existing  between  the  parties, 
from  which  the  duty  takes  its  origin ;  and  without  the  existence 
of  such  a  relation  there  was  no  duty  on  the  one  side,  and  no 
primary  right  on  the  other.  Now,  it  was  an  elementary  doctrine 
of  the  law  pertaining  to  partnership  that,  resulting  from  their 
mutual  dealings  with  their  joint  assets,  no  promise  is  ever  implied 
that  one  partner  shall  pay  to  the  other  any  definite  sum  as  the 


ACTION    BETWEEN    PARTNERS.  131 

amount  due  from  the  proceeds  of  the  undertaking,  or  as  his  share 
of  the  joint  assets.  No  promise  is  ever  implied  from  the  existence 
of  this  relation,  from  the  mere  fact  of  there  being  a  joint  busi- 
ness, joint  profits,  or  joint  property.  Or,  to  express  the  same 
doctrine  without  the  use  of  fictitious  terms,  from  the  relation  of 
partnership  and  the  joint  undertakings  and  assets  thereof,  the 
law  imposed  no  duty  upon  one  partner  to  pay  to  the  other  any 
definite  sum  in  respect  of  his  share  therein,  and  gave  no  corre- 
sponding primary  right  to  that  other  to  demand  such  payment. 
If,  however,  there  has  been  an  accounting,  so  that  a  balance  in 
favor  of  one  is  ascertained,  a  promise  is  implied  on  the  part  of  the 
other  —  or  a  duty  arises  on  his  part  — to  pay  that  sum.  The  right 
to  maintain  the  action  by  one  partner  against  another,  and  to 
recover  a  definite  sum,  depended  therefore,  and  still  depends,  not 
upon  anything  connected  with  the  form  of  the  action,  or  upon 
the  distinctions  between  legal  and  equitable  actions,  but  upon 
the  very  nature  of  the  primary  right.  Those  courts  which  have 
held  that,  under  the  new  procedure,  a  partner  may  recover  a 
definite  sum  from  a  copartner  without  an  accounting  and  without 
an  express  promise,  have  in  effect  decided  that  the  new  procedure 
has  materially  changed  the  primary  rights  of  parties,  has,  in  this 
instance,  created  a  primary  right  which  did  not  before  exist  at 
all,  which  is  a  conclusion  in  direct  antagonism  with  the  plainest 
and  best-settled  principles  of  interpretation.  In  fact,  this  primary 
right  of  a  partner  against  his  fellow  has  not  been  modified  by  the 
reform  in  the  modes  of  procedure  ;  and  under  the  new  system,  as 
under  the  old,  there  should  be  no  recovery  of  a  definite  sum  in 
any  action,  unless  the  facts  which  create  the  primary  right  have 
occurred,  —  unless  there  has  been  or  is  an  accounting  and  balance 
ascertained,  or  an  express  promise  to  pay  the  sum.  It  is  not  the 
case  of  an  etpiitable  primary  right  being  supported  by  a  legal 
remedy,  because  the  equitable  primary  right  of  the  partner  does 
not  involve  the  payment  of  a  certain  sum ;  its  only  remedy  is  an 
accounting,  and  this  is  preserved  in  full  force  and  effect.  The 
analysis  above  given  may  not  be  very  important  in  itself ;  but  it 
will  aid  in  distinguishing  primary  from  remedial  rights,  and  the 
substances  of  rights  which  have  not  been  changed  from  the  formal 
incidents  which  have  been  abolished ;  it  will  enable  us  to  deter- 
mine the  exact  limits  of  the  modifications  made  by  the  reform 
legislation. 


132  CIVIL   REMEDIES. 

§  105.  A  few  instances  of  other  actions  will  bring  this  inquiry 
to  an  end.^  It  has  been  held  in  Nevada  that  a  person  claiming 
to  be  tenant  in  connnon  with  others  of  land  may  maintain  an 
action  for  partition,  whether  his  title  be  legal  or  equitable.^  On 
the  other  hand,  the  Supreme  Court  of  Missouri  has  decided  that 
the  owner  of  chattels  by  an  equitable  title  cannot  recover  dam- 
ages for  their  conversion  in  an  action  analogous  to  trover.^ 

§  lOG.  I  have  thus  dwelt  at  length  upon  the  particular  case  of 
combining  legal  and  equitable  rights  and  remedies  which  forms 
the  subject  of  the  present  section,  because  more  than  any  other 
it  involves  and  expresses  the  true  intent  and  design  of  the  new 
system  ;  it  is  the  crucial  test  of  the  manner  in  which  the  spirit 
of  the  reform  is  accepted  b}^  the  courts.  Probably  nothing  con- 
nected with  the  practical  administration  of  justice  could  be  more 
startling  to  the  laAvyer  of  the  old  school  than  the  suggestion  that 
the  owner  of  a  purely  equitable  estate  in  lands  should  be  able  to 
bring  an  action  of  ejectment  to  recover  possession  of  the  premises  ; 
it  would  be  opposed  to  all  his  conceptions  of  law  and  of  equity 
and  of  the  uses  of  actions  and  courts.  And  yet  these  conceptions 
were  plainly  artificial  and  arbitrary,  and  the  familiar  rules  as  to 
the  employment  of  actions  as  plainly  had  no  foundation  in  the 
nature  of  things,  but  rested  upon  words  alone.  The  final  object 
of  the  reformed  American  system  was  to  sweep  away  all  of  these 
technicalities,  and  to  allow  every  primary  right  to  be  maintained 
and  every  remedial  right  enforced  in  the  same  manner  and  by  a 
single  judicial  instrument,  untrammelled  by  the  restrictions  and 
limitations  which  made  the  practical  administration  of  justice  in 
England  and  in  the  United  States  seem  so  absurd  to  the  cultivated 
jurists  of  Europe.  That  the  numerical  weight  of  authority  is  at 
present  opposed  to  my  views  in  relation  to  the  particular  matter 
in  question,  I  fully  concede.  I  believe,  however,  that  in  time 
the  influence  of  an  education  in  the  technicalities  of  the  common- 
law  system  will  cease  to  be  felt  on  the  bench  and  among  the 
members  of  the  bar,  and  that  the  practical  rules  of  procedure  in 
all  the  States  will  be  brought  into  a  perfect  harmony  with  the 
letter  and  the  spirit  of  the  reformatory  legislation. 

1  That  an  action  brouglit  to  recover  a         ■^  Crosier  v.  McLaugliiin,  1  Nev.  348. 
money  judgment  alone  may  be  equitable,        ^  Walker's  Adm'rs.  v.  Walker,  25  Mo. 

and  based  upon  purely  equitable  rights,  367.     S.  P.  Johannesson  v.   Borschenius, 

see  Rindge  v.  Baker,  57  N.  Y.  20'J,  219.  35  Wise.  131,  134. 


ESSENTIAL   DIFFERENCES    BETWEEN    ACTIONS.  133 


SECTION     SIXTH. 

THE    NATURE   OF   CIVIL  ACTIONS   AND    THE    ESSENTIAL    DIFFER- 
ENCES BETWEEN  THEM. 

§  107.  Notwithstanding  the  sweeping  language  of  the  codes 
and  practice  acts  which  abolishes  all  distinctions  between  the 
forms  of  actions  heretofore  existing,  many  judges  in  construing 
the  provisions  have  declared  in  most  emphatic  terms  that  the 
change  is  confined  to  the  external  forms  alone  of  actions  at  law, 
and  that  in  their  essential  features  certain  distinctions  and  pecul- 
iar elements  remain  which  cannot  be  removed  by  legislation. 
This  statement  is  to  a  certain  extent  true,  if  it  be  confined  to 
what  is  really  the  substance  of  each  action,  and  is  not  extended 
so  as  to  include  many  incidents  which,  although  appearing  to  be 
substantial,  are  really  the  results  of  arbitrary  conceptions  relating 
to  the  form ;  for  example,  the  old  rule  discussed  in  the  preceding 
section,  which  confined  the  action  of  ejectment  to  the  recovery  of 
possession  of  lands  in  which  the  plaintiff  had  a  legal  estate.  If  this 
doctrine,  however,  is  carefully  examined,  and  the  examples  and 
authorities  in  its  support  are  closely  analyzed,  it  will  be  found 
that  all  the  unchangeable  features  and  elements  which  are  said 
to  inhere  in  different  actions,  and  which  cannot  be  reduced  to  an 
identity,  pertain  to  the  primary  rights  sought  to  be  maintained 
by  their  means,  to  the  delicts  or  wrongs  by  which  these  rights  are 
invaded,  to  the  remedial  rights  which  thereupon  accrue  to  the 
injured  party,  and  to  the  remedies  themselves  which  are  the  final 
objects  of  the  judicial  proceeding.  These  features  and  elements 
in  actions  are  indeed  different,  and  the  difference  between  them 
the  new  system  does  not  propose  to  abolish  nor  change.  The 
doctrine  itself  is,  therefore,  no  more  than  the  statement  in  another 
form  of  the  conceded  fact  that  the  reformed  procedure  has  not 
affected  the  primary  rights  or  the  remedies  which  the  municipal 
law  creates  and  confers. 

§  108.  As  all  actions  are  brought  to  maintain  some  primary 
right  invaded  by  a  wrong,  and  as  they  result  in  some  one  of  the 
many  kinds  of  remedies  prescribed  by  the  law,  and  as  in  each 
action  the  facts  from  which  the  primary  right  arises,  and  the 
facts  which  constitute  the  wrong,  must  be  stated,  and  as  the 


134 


CIVIL    REMRDIES. 


plaintiff  must  demand  and  seek  to  ol)tain  some  remedy  appropri- 
ate to  the  right  and  the  delict,  it  follows,  as  a  necessary  conse- 
quence, that  the  actions,  although  constructed  and  carried  on 
according  to  the  one  uniform  principle  of  alleging  the  facts  as  they 
actually  are  and  praying  for  the  relief  legally  pro])er,  must  differ  in 
their  substance,  because  the  rights,  the  delicts,  and  the  remedies  dif- 
fer. This  necessary  feature  of  civil  actions  under  the  codes  has  been 
dwelt  upon  and  explained  in  numerous  cases,  some  of  which  are 
cited  in  the  note.^     This  doctrine  was  very  clearly  stated  in  a 


1  Goulet  V.  Asseler,  22  N.  Y.  225,  227, 
228,  per  Selden  J.  ;  Eldridge  v.  Adams, 
54  Barb.  417,  419,  per  James  J. ;  Hord  v. 
Chandler,  13  B.  Mon.  403 ;  Hill  v.  Barrett, 
14  B.  Mon.  83,  85,  per  Marshall  J. ;  Payne 
V.  Treadwell,  16  Cal.  220,  243,  per  Field 
C.  J. ;  Lubert  v.  Cliauviteau,  3  Cal.  458, 
462,  per  Wells  J. ;  Jones  v.  Steamship 
Cortes,  17  Cal.  487,  497,  per  Cope  J. ; 
Sampson  v.  Shaeffer,  3  Cal.  196,  205,  per 
AVells  J. ;  Miller  p.  Van  Tassel,  24  Cal. 
458,  463,  per  Rhodes  J. ;  Richmond,  &c. 
T.  Co.  V.  Rogers,  7  Bush,  532,  535 ;  How- 
land  V.  Need  ham,  10  Wise.  495.  One  of 
the  most  elaborate  of  these  judicial  dicta 
is  that  of  Mr.  Justice  Selden  in  Goulet  v. 
Asseler ;  and,  although  I  dissent  from  his 
conclusions  as  a  whole,  I  quote  it  in 
full  as  an  able  exposition  of  a  certain 
class  of  opinions.  He  says  (p.  227):  "It 
can  hardly  be  claimed  that  prior  to  the 
code  an  action  of  trespass  or  of  trover 
could  have  been  maintained,  either  against 
the  officer  or  the  plaintiff  in  the  execu- 
tion under  the  circumstances  here  dis- 
closed. If  any  action  would  have  lain 
before  the  code,  it  could  only  have  been 
an  action  founded  on  the  special  circum- 
stances of  tlie  case,  setting  forth  the  in- 
jury to  the  contingent  interest  of  the  plain- 
tiff in  the  i)roperty,  and  claiming  damages 
for  such  injury."  He  states  that  in  "  tres- 
pass "  or  "  trover"  a  plaintiff  nmst  show 
that  lie  had  either  the  actual  possession 
or  the  right  tf)  the  possession  at  the  time 
of  the  alleged  taking  or  conversion,  and 
in  such  case  the  value  of  the  property 
was  the  measure  of  damages ;  while  in 
the  "  action  on  the  case  "  he  must  prove 
his  damages,  and  could  recover  only  what 
he  liad  actually  sustained,  and  proceeds 
(p.  228):  "Although  the  code  has  abolished 
all  distinctions  between  tiie  mere  forms  of 


action,  and  every  action  is  now  in  form  a 
special  action  on  the  case,  yet  actions 
vary  in  their  nature,  and  there  are  intrin- 
sic differences  between  tliem  which  no 
law  can  abolish.  It  is  impossible  to  make 
an  action  for  a  direct  aggression  upon  the 
plaintiff's  rights  by  taking  and  disposing 
of  his  property,  tlie  same  thing,  in  sub- 
stance or  principle,  as  an  action  to  recover 
for  the  consequential  injury  resulting 
from  the  improper  interference  with  the 
property  of  another  in  which  he  has  a 
contingent  or  prospective  interest.  The 
mere  formal  differences  between  such  ac- 
tions are  abolislied.  The  substantial  diflT- 
erences  remain  as  before.  The  same 
proof  is  therefore  required  in  each  of 
these  two  kinds  of  action  as  before  the 
code,  and  the  same  rule  of  damages  ap- 
plies. Hence  in  an  action  in  which  the 
plaintiffestablishes  a  right  to  recover  upon 
the  ground  that  the  defendant  has  wrong- 
fully converted  property,  to  the  possession 
of  which  the  plaintiff  was  entitled  at 
the  time  of  the  conversion,  the  proper 
measure  of  damages  is  still  the  value  of 
the  property."  This  rule,  in  respect  to 
the  measure  of  damages,  is  undoubtedly 
correct;  but  the  substantial  features,  which 
the  learned  judge  declares  remain  unal- 
tered, are  simply  tlie  primary  rights  of  the 
plaintiff  and  the  wrongs  thereto  done  by 
the  defendant.  In  the  example  which  he 
gives  the  difference  which  he  points  out 
is  nothing  more  nor  less  than  the  differ- 
ence between  these  rights  and  the  delicts 
by  which  they  are  invaded.  These  of 
course  cannot  be  changed  by  legislation  ; 
but  these  do  not  constitute  the  action  ;  they 
are  the  facts  upon  which  the  action  is 
based.  The  whole  tenor  of  the  quotation 
implies  a  greater  resemblance  between 
the  external   forms    of  the   civil   action 


ESSENTIAL   DIFFERENCES    BETWEEN    ACTIONS. 


135 


]'ecent  case  as  follows :  "  Although  all  forms  of  action  were  abol- 
ished by  the  code,  the  principles  by  which  the  different  forms  of 
action  were  governed  still  remain,  and  now,  as  much  as  formerly, 
control  in  determining  the  rights  of  the  parties.  In  pleading,  a 
party  is  now  to  state  the  facts  on  which  he  relies  to  sustain  a 
recovery ;  and,  if  issue  be  taken  thereon,  he  will  be  entitled  to 
just  such  a  judgment  as  the  facts  established  will  by  the  rules  of 
the  law  warrant,  without  regard  to  the  name  or  the  form  of  his 
action."  ^  This  judge  would,  however,  have  expressed  his  meaning 
more  accurately  if  he  had  said,  "■  The  principles  by  which  the 
different  actions  were  governed  still    control,"  instead  of  "The 


under  the  code  and  of  those  in  use  prior 
to  tlie  code  tiian  actually  exists.  In 
marked  contrast  with  this  citation  from 
Mr.  Justice  Selden,  I  quote  the  language 
of  Field  C.  J.  in  Payne  v.  Treadwell,  16 
Cal.  220.  The  action  was  brought  to  re- 
cover possession  of  land.  The  complaint 
alleged  "  that  the  plaintiffs  are  owners  in 
fee  as  tenants  in  common,  and  have  the 
lawful  riglit  and  are  entitled  to  the  pos- 
session "  of  the  described  premises,  and 
"  that  said  defendants  wrongfully  entered 
upon  and  are  now  in  the  wrongful  posses- 
sion of  said  premises,  and  wrongfully 
withhold  the  possession  thereof  from  the 
plaintiff."  The  judgment  demanded  was 
possession  and  damages.  The  judge 
said  (p.  243):  "It  is  usual  to  speak  of 
the  action  to  recover  possession  of  real 
property  as  the  action  of  ejectment,  and  it 
is  possible  that  with  the  technical  designa- 
tion it  is  sometimes  thought  that  some 
of  the  technical  allegations  peculiar 
to  the  old  form  of  tiie  action  are  still 
necessary.  But  such  is  not  tiie  case. 
There  is  but  one  form  of  civil  action  in 
this  State,  and  all  the  forms  of  pleading 
and  the  rules  by  which  their  sufficiency 
is  to  be  determined  are  prescribed  by  the 
Practice  Act.  The  system  in  this  State 
requires  the  facts  to  be  alleged  as  they 
exist,  and  repudiates  all  fictions.  And 
only  such  facts  need  be  alleged  as  are 
required  to  be  proved,  except  to  negative 
the  possible  performance  of  the  obligation 
which  is  the  basis  of  the  action,  or  to 
negative  an  inference  from  an  act  which 
is  in  itself  indifferent.  Now  what  facts 
must  be  proved  to  recover  in  ejectment  1 
These  only  :  that  the  plaintiff  is  seized  of 


the  premises,  or  of  some  estate  therein,  in 
fee,  tor  life  or  for  years,  and  that  the  de- 
fendant was  in  possession  at  the  com- 
mencement of  the  action.  The  seizin  is 
the  fact  to  be  alleged.  It  is  a  pleadable 
and  issuable  fact,  to  be  established  by 
conveyance  from  a  paramount  source  of 
title  or  by  evidence  of  prior  possession. 
It  is  the  ultimate  fact  upon  wliich  the 
claim  to  recover  depends  ;  and  it  is  facts 
of  this  character  which  must  be  alleged, 
and  not  the  prior  or  probative  facts  which 
go  to  establish  them."  The  doctrine  which 
Mr.  Justice  Field  thus  applies  to  the  sin- 
gle action  is  clearly  applicable  to  all  kinds 
of  actions,  legal  or  equitable  ;  and  it  is  the 
common  principle  which  renders  the  civil 
action  under  the  new  system  a  unit  in 
respect  of  external  form,  no  matter  how 
much  diversity  there  may  be  in  the  pri- 
mary rights,  delicts,  and  remedies.  This 
sound  principle  was  accurately  stated  by 
Mr.  Justice  Cope  in  Jones  v.  Steamship 
Cortes,  17  Cal.  487,  497:  "We  have  but 
one  form,  and  nothing  more  is  required 
than  a  statement  of  the  facts  relied  upon 
for  a  recovery.  The  statute  makes  no 
distinction  in  matter  of  form  lietween  ac- 
tions of  contract  and  those  of  tort  ;  and 
relief  is  administered  without  reference 
to  the  technical  and  artificial  rules  of  the 
common  law  upon  the  subject."  In  Mil- 
ler V.  Van  Tassel,  24  Cal.  458,  463,  Rhodes 
J.  said  :  "  The  forms  only  of  the  several 
actions  have  been  abolished ;  the  subslan- 
tial  allegations  of  the  complaint  in  a  given 
case  must  be  tlie  same  under  our  Practice 
Act  as  were  required  at  the  common  law." 
1  Eldridge  v.  Adams,  64  Barb.  417,  419, 
per  James  J. 


136  CIVIL   REMEDIES. 

principles  ])Y  which  the  different  forms  of  action  were  governed 
still  control."  The  true  effect  of  the  reform  was  well  stated  by 
the  Court  of  Appeals  of  Kentucky  in  the  following  extract : 
"  The  code  makes  no  change  in  the  law  which  determines  what 
facts  constitute  a  cause  of  action,  except  that,  by  reducing  all 
forms  of  action  to  the  single  one  by  petition,  it  changes  the 
question  whether  the  plaintiff's  statement  of  his  cause  shows 
facts  constituting  a  cause  of  action  in  "  trespass,"  or  "  assumpsit," 
or  other  particular  form,  into  the  more  general  question  whether 
it  shows  facts  which  constitute  a  cause  of  action  at  all ;  that  is, 
whether  the  facts  stated  are  sujfficient  to  show  a  right  in  the 
plaintiff,  an  injury  to  that  right  by  the  defendant,  and  consequent 
damage.  What  facts  do  in  this  sense  establish  a  cause  of  action 
is  determined  by  the  general  rules  or  principles  of  law  respecting 
rights  and  wrongs,  and  by  a  long  course  of  adjudication  and 
practice  applying  these  rules  to  particular  actions  under  the  long 
established  rule  of  pleading,  that  the  declaration  must  state  the 
facts  which  constitute  the  plaintiff's  cause  of  action.  .  .  .  The 
code  does  not  authorize  a  recovery  upon  a  statement  of  facts 
which  did  not  constitute  a  cause  of  action  in  some  form  before 
the  code  was  adopted.  And,  therefore,  the  former  precedents 
and  rules  and  adjudications  may  now  be  resorted  to  as  authorita- 
tive, except  so  far  as  they  relate  to  the  distinctions  between  the 
different  forms  of  action,  or  to  merely  formal  or  technical  alle- 
gations." ^  To  this  clear  and  accurate  exposition  I  can  add  noth- 
ing which  will  increase  its  efficacy  as  the  enunciation  of  the 
general  principle.  The  final  effect  produced  by  the  reform 
legislation  in  abolishing  all  distinctions  between  actions  may  be 
expressed  in  the  following  manner:  No  inquiry  is  now  to  be 
made  whether  the  action  is  "  trespass,"  or  "  trover,"  or  "  assump- 
sit," or  any  other  of  the  ancient  common-law  forms,  nor,  except 

•  Hill  V.  Barrett,  14  B.  Mon.  83,  85,  per  upon  the  subject  of  pleading  and  practice." 

Marshall  J.     In  the  very  recent  case  of  There  is  really  no  conflict  between  these 

Richmond,  &c.,  T.  Co.  v.  Rogers,  7  Bush,  two  modes  of  statement  made  by  the  Ken- 

532,  535,  the  court  used  the  following  Ian-  tucky  court.     The  broad  generality  of  the 

guage :  "  The  code  makes  no  change  in  latter   quotation    is   limited    by    the    ex- 

the  law  which  determines  what  facts  con-  ception  which  the  court  adds,  and  without 

stitute   a   cause  of  action.     Forms  have  which    the   rule  as  laid  down    would  be 

been  abolished  ;  but  the  substance  of  the  plainly  erroneous.      See  Johannesson   v. 

common  law  rules  of  legal  procedure  re-  Borschenius,  35  Wise.  131,  135;   Haugh- 

niains,  except  where  they   conflict   with  ton  v.  Newberry,  69  N.  C.  456,  459-461, 
the    spirit    of  our   statutory    regulations 


ESSENTIAL    DIFFERENCES    BETWEEN    ACTIONS.  137 

for  the  single  purpose  of  determining  the  proper  tribunal  for  its 
trial,  whether  it  is  legal  or  equitable  ;  all  these  forms  and  classes 
are  utterly  abrogated.  For  this  reason,  the  various  rules  which 
pertained  to  each  of  these  common-law  forms  of  action,  which 
distinguished  one  from  the  other,  which  determined  the  peculiar 
nature  and  object  of  each,  and  which  regulated  the  proceedings 
in  each,  are  no  longer  to  be  invoked.  It  is  simply  an  abuse  of 
language  to  say  that  the  ancient  forms  of  action  have  been 
abolished,  and  that  any  of  the  rules  which  were  based  upon  the 
existence  of  these  forms,  and  had  no  relevancy  except  in  connec- 
tion therewith,  are  retained.  The  only  question  is.  Would  the 
facts  stated  have  enabled  the  plaintiff  to  maintain  any  of  the 
common-law  actions  or  a  suit  in  equity  ?  This  is,  however, 
identical  with  the  rule  already  given,  that  the  primary  rights 
created  by  the  law,  and  the  wrongs  committed  against  them,  and 
the  remedial  rights  resulting  from  such  wrongs,  are  unaffected 
by  the  legislation  which  only  aims  at  a  reform  in  the  pro- 
cedure. 

§  109.  The  general  doctrine  thus  reached  may  be  properly 
illustrated  by  one  or  two  examples  which  will  serve  to  fix  its 
exact  meaning  and  application.  Under  the  former  system  the 
person  who  had  the  actual  possession,  or  the  immediate  right  to 
the  possession,  of  a  chattel  which  had  been  taken  and  carried 
away  or  destroyed  by  the  wrong-doer,  might  recover  his  compen- 
satory damages  in  the  action  of  "  trespass."  To  maintain  it,  the 
possession  or  immediate  right  thereof  was  an  essential  element, 
and  the  plaintiff  recovered  the  value  of  the  article  as  the  meas- 
ure of  his  damages.  If,  however,  the  plaintiff  had  merely  a 
contingent  or  prospective  interest,  without  right  of  immediate 
possession,  in  a  chattel  which  was  at  the  time  the  general  property 
of  another,  his  appropriate  action  for  the  taking,  destruction,  or 
conversion  of  the  chattel  by  a  wrong-doer  was  "  case,"  and  his 
damages  were  a  compensation  for  the  pecuniary  loss  actually 
sustained.  The  distinctions  between  these  two  actions  have 
been  abolished  ;  but  the  distinctions  between  the  primary  rights 
and  the  wrongs  which  constitute  the  two  causes  of  action  cannot  be 
removed.  Now,  as  before,  if  the  owner  in  possession  sues  for  the 
taking  or  destruction  of  his  chattel,  he  will  recover  its  value  as  his 
damages  ;  while,  if  the  holder  of  a  contingent  future  interest,  unac- 
companied by  possession,  sues  for  the  taking  or  destruction,  he  will 


138  CIVIL   REMEDIES. 

recover  the  value  of  his  interest.  In  the  one  case  the  plaintiff  must 
establish  his  possessory  right  if  he  seeks  to  obtain  the  value  of 
the  chattel  as  his  compensation ;  in  the  other  case  the  value  of 
his  contingent  interest  will  be  proved  and  fixed  by  the  jury. 
These  elements  and  features,  however,  do  not  belong  to  the  action 
as  a  judicial  instrument  for  establishing  a  right ;  they  belong  to 
the  primary  and  remedial  rights  themselves,  which  are  unchanged 
by  the  codes.  In  the  former  system  of  procedure,  in  the  works 
of  text-writers,  and  in  the  judgments  of  courts,  the  discussion  and 
determination  of  these  unchangeable  primary  and  remedial  rights 
was  always  intimately  connected  with,  and  made  an  essential  part 
of,  the  discussion  and  determination  of  the  rules  as  to  external 
form  in  the  action  itself,  so  that  it  was  difficult,  if  not  impossible, 
to  distinguish  them.  From  the  very  nature  of  the  common-law 
system  of  procedure,  as  well  as  from  the  judicial  habit  of  mind 
which  it  produced,  the  courts  seldom,  if  ever,  passed  upon  the 
existence  of  the  primary  or  the  remedial  right  in  the  abstract ; 
the}^  decided  rather  whether  the  action  was  of  the  proper  form, 
or  the  averments  of  the  pleadings  were  of  the  proper  nature,  to 
maintain  the  primary  right  asserted,  and  to  enforce  the  remedial 
right  claimed  to  have  arisen.  The  result  was  that  in  the  stand- 
ard treatises  and  digests  primary  and  remedial  rights  were  classi- 
fied and  arranged  under  the  various  forms  of  action  known  to 
the  common-law  procedure.  These  forms,  with  all  their  incidents, 
have  been  swept  away ;  but  there  is  danger  lest  the  technical  rules 
which  have  been  abrogated  should  be  confounded  with  the  prin- 
ciples relating  to  rights  and  remedies  which  remain  unaffected  by 
the  reform. 

§  110.  A  particular  feature  of  distinction  between  actions — or 
rather  between  the  rights  upon  which  actions  are  based  —  which 
existed  under  the  common-law  system  has  been  preserved  under 
the  new  procedure.  The  general  classification  being  made  of 
actions  ex  contractu  and  those  ex  delicto^  there  were  many  cases 
in  which  a  party  who  had  suffered  a  wrong  by  the  conversion  or 
the  taking  and  carrying  away  of  his  chattels  might  waive  the 
tort,  and  bring  an  action  of  assumpsit  upon  the  wrong-doer's 
implied  promise  to  pay  the  price  of  the  articles  taken.  The  same 
election  still  exists.  Wherever  the  plaintiff  who  could  sue  in 
"  trespass  "  or  "  trover  "  might,  if  he  chose,  bring  "  assumpsit,"  he 
maj'^  now  waive  the  tort,  and  maintain  an  action  upon  an  implied 


ESSENTIAL   DIFFERENCES   BETWEEN    ACTIONS.  139 

promise,  and  recover  the  price  of  the  goods  as  though  there  had 
been  a  sale.  This  choice,  however,  does  not  rehite  to  the  ex- 
ternal form  of  an  action ;  it  relates  to  the  very  cause  of  action 
itself,  —  to  the  unchangeable  rights  which  are  to  be  protected  and 
enforced  by  the  judicial  proceeding.  In  one  instance,  the  plaintiff 
is  permitted  to  view  the  transaction  as  an  injury  to  his  property 
by  which  he  has  sustained  damages  which  amount  to  the  entire 
value  of  that  property.  In  the  other,  he  views  the  transaction 
as  a  sale,  by  which  the  title  to  the  property  has  passed  to  the 
defendant,  and  a  duty  to  pay  the  price  rests  upon  him.  For 
reasons  of  public  policy,  the  law  allows  the  injured  party  to  make 
his  choice  between  these  two  quite  different  versions  of  the  same 
transaction  ;  and,  although  one  of  them  may  be  a  fictitious  view, 
substantial  justice  is  done  thereby.  It  is  plain,  however,  that 
this  rule  has  no  connection  with  the  external  forms  of  action;  it 
has  reference  only  to  the  rights  and  delicts  which  lie  back  of  all 
actions. 

§  111.  In  conclusion,  as  the  distinctions  between  the  common-law 
forms  of  action  are  abolished,  the  practice  since  the  codes,  some- 
times indulged  in  even  by  courts  in  their  solemn  judgments,  of  re- 
taining the  ancient  nomenclature,  and  of  describing  a  given  cause 
as  "  trespass,"  "  trover,"  "  assumpsit,"  and  the  like,  is  productive 
of  confusion,  and  of  confusion  alone.  No  practical  rules  or  doc- 
trines in  the  administration  of  justice  according  to  the  reformed 
system  of  procedure  result  from  these  old  forms  ;  no  practical  aid 
in  the  decision  of  a  cause  is  to  be  obtained  from  regarding  it  as 
"  trespass,"  or  "  trover,"  or  "  assumpsit,"  or  from  the  giving  it 
any  other  name ;  no  difficulties  are  removed  nor  doubts  cleared 
up  by  a  resort  to  this  method  of  description.  On  the  other  hand, 
there  is  a  constant  tendency  to  associate  with  these  names  the 
rules  and  doctrines  which  were  once  inseparable  from  them,  but 
which  have  been  in  the  most  positive  manner  abrogated  by  the 
legislature  ;  in  fact,  much  of  the  doubt  and  confusion  which  even 
yet  accompany  the  administration  of  justice  in  those  States 
which  have  adopted  the  reformed  system  of  procedure,  is  due 
to  a  retention  of  these  names  by  the  bench  and  the  bar;  and  I 
believe  that  the  reform  itself  will  never  produce  its  full  results 
in  simplicity  and  scientific  accuracy  until  the  ancient  nomen- 
clature is  utterly  forgotten  or  banished  from  the  courts.     The 


140  CIVIL    REMEDIES. 

two  systems  of  procedure  are  so  entirel}'  different,  they  are  based 
upon  notions  so  absolutely  unlike,  that  any  intermingling  of 
their  elements  is  impossible  ;  the  one  which  has  been  introduced 
by  the  legislative  will  must  be  left  to  be  developed  according  to 
its  own  distinctive  principles,  without  any  interference  from  that 
which  has  been  abandoned  and  discarded. 


PARTIES   TO   THE   CIVIL   ACTION.  141 


CHAPTER    SECOND. 

THE  PARTIES   TO   THE   CIVIL   ACTION. 

SECTION    FIRST. 
THE   STATUTORY  PROVISIONS,  AND  THEIR  GENERAL  PRINCIPLES. 

§  112.  The  second  of  the  distinctive  features  which  belong  to 
and  characterize  the  single  civil  action  of  the  American  system 
consists  of  the  principles  and  rules  adopted  in  respect  of  the 
parties  thereto.  Under  the  old  pi-ocedure  the  rules  which  gov- 
erned the  parties  to  actions  at  law,  and  those  which  regulated 
the  parties  to  suits  in  equity,  stood  in  marked  contrast  Avith  each 
other  ;  in  fact,  the  fundamental  conception  of  these  two  judicial 
instruments  was  radically  unlike.  It  will  be  sufficient  to  men- 
tion one  of  these  essential  differences.  In  an  action  at  law  the 
plaintiff  must  be  a  person  in  whom  is  vested  the  whole  legal 
right  or  title  ;  and,  if  there  were  more  than  one,  they  must  all  be 
equally  entitled  to  the  recovery.  So  far  as  the  mere  recovery  is 
concerned,  the  right  must  dwell  in  them  all  as  a  unit,  and  the 
judgment  must  be  in  their  favor  equally.  The  defendants,  on 
the  other  hand,  must  be  equally  subject  to  the  common  liability, 
so  that,  even  if  it  were  possible  for  the  jury  to  find  a  separate 
verdict  against  each,  the  same  and  single  judgment  must  be 
rendered  against  them  all  in  a  body.  In  other  words,  whatever 
might  be  the  nature  of  the  antecedent  right  or  liability,  whatever 
antecedent  power  there  might  be  of  electing  to  sue  by  one  or 
all  and  against  one  or  all,  after  the  election  is  made  to  sue  by 
or  against  all,  the  recovery  is  necessarily  joint,  and  the  burden  of 
the  remedy  is  necessarily  joint.  The  suit  in  equity  was  ham- 
pered by  no  such  arbitrary  requirements.  Two  general  and 
natural  principles  controlled  its  form :  firsts  that  it  should  be 
prosecuted  by  the  party  really  in  interest,  although  with  him 
might  be  joined  all  others  who  had  an  interest  in  the  subject- 
matter  and  in  obtaining  the  relief  demanded  ;  and,  secondly^  that 
all  persons  whose  presence  is  necessary  to  a  complete  determina- 


142  CIVIL    REMEDIES. 

tion  and  settlement  of  the  questions  involved  shall  be  made 
parties,  so  that  in  one  decree  their  various  rights,  claims,  interests, 
and  liabilities,  however  varying  in  importance  and  extent,  may 
be  determined  and  adjudicated  upon  by  the  court.  As  the 
methods  adopted  by  the  chancellor  did  not  require  him  to  pro- 
nounce a  judgment  in  favor  of  all  the  plaintiffs,  nor  indeed  in 
favor  of  plaintiffs  alone,  and  against  all  the  defendants,  nor  indeed 
against  defendants  alone,  it  was  not  a  matter  of  vital  importance 
whether  a  particular  person  who  was  made  a  party  should  be 
a  plaintiff  or  a  defendant.  It  was  possible  to  give  relief  to 
defendants  as  against  each  other  or  against  plaintiffs.  It  must 
not  be  understood  that  no  order  or  method  was  observed  in 
the  disposition  of  parties  ;  but,  without  discussing  the  various 
rules  in  detail,  it  is  sufficient  for  my  present  purpose  to  point  out 
this  fundamental  diiference  in  conception  between  legal  and 
equitable  actions.  The  intention  plainly  shown  in  the  various 
State  codes  of  procedure  is  to  adopt  the  general  equity  theory  of 
parties,  rather  than  the  legal  theory,  and  to  apply  it  to  the  single 
civil  action  in  all  cases,  whatever  be  the  nature  of  the  primary 
right  to  be  protected  or  of  the  remedy  to  be  obtained.  How  far 
this  intention  has  been  expressed,  how  completely  it  has  been 
carried  out  in  the  legislation  of  the  several  States,  will  be  seen 
from  the  provisions  themselves  to  be  immediately  quoted.  After 
making  these  extracts  and  grouping  them  properly,  I  shall  very 
briefl}^  point  out  their  general  similarity  and  their  special  diver- 
gencies from  the  common  type,  and  shall  then  proceed  in  the 
succeeding  sections  of  the  present  chapter  with  a  careful  dis- 
cussion of  each  separate  provision.  It  will  be  seen  that  there 
is  an  almost  complete  identity  in  many  of  these  statutory  rules  as 
they  are  expressed  in  the  various  codes,  although  in  some  of  them 
the  equitable  theory  has  been  more  fully  carried  out  into  detail. 
§  113.  Statutory  Provisions.  "Every  action  must  be  prosecuted 
in  the  name  of  the  real  party  in  interest  except  as  otherwise  pro- 
vided in  [this  chapter,  this  article,  or  some  designated  section]  ; 
but  this  section  shall  not  be  deemed  to  authorize  the  assignment 
of  a  thing  in  action  not  arising  out  of  contract."  ^  The  same 
appears  slightly  varied  in  a  few  States,  as  follows :  "  Every 
action   must  be   prosecuted  in  the   name   of   the  real  party  in 

'  IiKliana,  §  3  ;  Kansas,  §  26  ;  Minne-    §§  27,  379  ;  Nevada,  §  4  ;  Kentucky,  §  30 ; 
8ota,  §  26;  Missouri,  art.  1,  §  2;  Wiscon-     Washington,  §  3  ;  Montana,  §  4. 
sin,  ch.  122,  §  12;  Florida,  §  62;  Oregon, 


STATUTORY    PROVISIONS    IN    RELATION    TO    PARTIES.  143 

interest,  except  as  is  otherwise  provided  in  [this  title  or  article]."  ^ 
In  some  codes  the  form  is  that  first  given  above,  but  to  it  is 
added  the  following  clause  :  "  But  an  action  ma}^  be  maintained 
by  the  grantee  of  land  in  the  name  of  the  grantor,  or  his  or  her 
heirs  or  legal  representatives,  when  the  grant  or  grants  are  void 
by  reason  of  the  actual  possession  of  a  person  claiming  under  a 
title  adverse  to  that  of  the  grantor  at  the  time  of  the  delivery  of 
the  grant,  and  the  plaintiff  shall  be  allowed  to  prove  the  facts  to 
bring  the  case  within  this  provision."  ^  In  Nebraska  the  follow- 
ing provision  is  added  :  "  The  assignee  of  a  thing  in  action  may 
maintain  an  action  thereon  in  his  own  name  and  behalf  without 
the  name  of  the  assignor."  ^ 

§  114.  "  In  the  case  of  an  assignment  of  a  thing  in  action,  the 
action  of  the  assignee  shall  be  without  prejudice  to  any  set-off 
or  other  defence  [now  allowed,  Ohio^  Kansas^  Nehra8Jca\^  exist- 
ing at  the  time  of  or  before  notice  of  the  assignment;  but" this 
section  shall  not  apply  to  [negotiable  bonds,  Ohio,  Kansas,  Ne- 
braska'] negotiable  promissory  notes  or  bills  of  exchange  transferred 
in  good  faith  and  upon  good  consideration  before  due."  ^  "  When 
the  action  is  brought  by  the  assignee  of  a  claim  arising  out  of 
contract  not  assigned  by  indorsement  in  writing,  the  assignor 
shall  be  made  a  defendant  to  answer  as  to  the  assignment  or  his 
interest  in  the  subject  of  the  action  ;  "  and  this  is  followed  by  the 
provision  in  reference  to  set-off  or  other  defences  contained  in 
the  last  citation.^ 

§  115.  "  An  executor,  an  administrator,  a  trustee  of  an  ex- 
press trust,  or  a  person  expressly  authorized  b}^  statute,  may  sue 
without  joining  with  him  the  person  for  whose  benefit  the  action 
is  prosecuted.  A  trustee  of  an  exj)ress  trust  within  the  meaning 
of  this  section  shall  be  construed  to  include  a  person  with  whom, 
or  in  whose  name,  a  contract  is  made  for  the  benefit  of  another."  ^ 
The    same    as    slightly  varied:     "An    executor,    administrator, 

1  Ohio,  §  25  ;  Cal.  §  367  ;  Iowa,  §  2543  ;  §  2546,  somewhat  different  in  form  from 

Neb.  §  28  ;  Wyoming,  §  31  ;  Idaho,  §  4.  the  text.     N.  C.  §  55  :  Wash.  §  3 ;  Idaho, 

^  New    York,    §    111;    Dacota,  §   64;  §  5 ;  Wyoming,  §  33;  Mont.  §  5. 

California,  §  367  ;  South  Carolina,  §  134  ;  5  Indiana,  §  6. 

N.  C.  §  55.  «  New  York,  §  113  ;  Indiana,  §  4;  Min- 

3  Nebraska,  §  28  ;  W^'oming,  §  82.  nesot'a,  §  28  ;  California,  §  369 ;  Missouri, 

4  New  York,  §112;  Ohio,  §26;  Kansas,  art.  1,  §3;  Wisconsin,  ch.  122,  §  14;  Flor- 
§  27  ;  Minnesota,  §  27  ;  California,  §  368  ;  ida,  §  64  ;  South  Carolina,  §  136  ;  Oregon, 
Wisconsin,  ch.  122,  §  13  ;  Indiana,  §  6  ;  Ne-  §  29 ;  Nevada,  §  6  ;  Dacota,  §  66  ;  North 
braska,  §  29;  Florida,  §  63;  Kentucky,  Carolina.  §  57  ;  Washington,  §4;  Idaho, 
§  31 ;  South  Carolina,  §  135 ;  Oregon,  §§  28,  §  6  ;  Wyoming,  §  34 ;  M^ontaua,  §  6. 
382;  Nevada,  §  5;  Dacota,   §  65;  Iowa, 


144  CIVIL    RExMEDIES. 

trustee  of  an  ex2)ress  trust,  a  person  wiili  whom  or  in  whose 
name  a  contract  is  made  for  the  benefit  of  another,  or  a  person 
expressly  authorized  by  statute,  may  bring  an  action  without 
joining  with  him  the  person  for  whose  benefit  it  is  prosecuted. 
Officers  may  sue  and  be  sued  in  such  name  as  is  authorized  by 
law,  and  official  bonds  may  be  sued  upon  in  the  same  way."^ 

§  116.  ""  All  persons  having  an  interest  in  the  subject  of  the 
action,  and  in  obtaining  the  relief  demanded,  may  be  joined  as 
plaintiffs,  except  as  otherwise  provided  in  this  title."  ^  "  Any 
person  may  be  made  a  defendant  who  has  or  claims  an  interest 
in  the  controversy,  adverse  to  the  plaintiff,  or  who  is  a  necessary 
party  to  a  complete  determination  or  settlement  of  the  questions 
involved  therein."  ^  In  a  few  codes  the  same  provision  appears, 
but  added  to  it  is  the  following  clause  :  "  And  in  an  action  to 
recover  possession  of  real  estate  the  landlord  and  tenant  thereof 
may  be  joined  as  defendants  ;  and  any  person  claiming  title  or  a 
right  of  possession  to  real  estate  may  be  made  a  party  plaintiff  or 
defendant  as  the  case  may  require  to  any  such  action."'^ 

§  117.  "  Of  the  parties  to  the  action  those  who  are  united  in 
interest  must  be  joined  as  plaintiffs  or  defendants  ;  but,  if  the 
consent  of  any  one  who  should  have  been  joined  as  plaintiff 
cannot  be  obtained,  he  may  be  made  a  defendant,  the  reason 
thereof  being  stated  in  the  complaint  [or  petition]. 

[And]  when  the  question  is  one  of  a  common  or  general  in- 
terest of  many  persons,  or  when  the  parties  are  ver}^  numerous, 
and  it  may  be  impracticable  to  bring  them  all  before  the  court, 
one  or  more  may  sue  or  defend  for  the  benefit  of  the  whole."  ^ 

1  Ohio,    §    27;    Kansas,  §  28;    Iowa,  380;  South  Carohna,  §  141;  K.  C.  §  61  ; 

§  2544  ;  Nebraska,  §  30 ;   Kentucky,  §  33.  Ida.  §  13 ;  Wyo.  §  41 ;  Mont.  §  13. 

•i  New  York,  §  117  ;  Ohio,  §  34  ;  Indiana,  °  This  provision  is  thus  given  in  one  sec- 
§  17  ;  Kansas,  §  35 ;  California,  §§  378, 381 ;  tion  in  New  York.  §  119  ;  Indiana,  §  19  ; 
Missouri,  art.  1,  §  4  ;  Wisconsin,  ch.  122,  California,  §  382;  Wisconsin,  ch.  122,  §  20  ; 
§  18 ;  Iowa,  §  2545 ;  Nebraska,  §  37  ;  Flori-  Florida,  §  70  ;  S.  C.  §  142  ;  N.  C.  §  62  ; 
da,  §  68  ;  Kentucky,  §  34  ;  South  Carolina,  Ida.  §  14  ;  Wyo.  §  42  ;  Mont.  §  14;  Da- 
§  140 ;  Oregon,  §  380,  but  limited  to  equita-  cota,  §  72 ;  Oregon,  §  381,  limited  to  equita- 
ble actions  ;  Nevada,  §  12  ;  Dacota,  §  70;  ble  actions  ;  Nevada,  §  14,  adding,  how- 
N.  C.  §  60  ;  Idaho,  i;  12  ;  Wyoming,  §  40 ;  ever,  to  the  section  as  given  in  the  text  the 
Montana,  §12;  Washington,  §  8.  following  clause:  "  Tenants  in  common, 

3  Ohio,   §  35;  Indiana,  §18;  Kansas,  joint    tenants,   and    copartners,   or    any 

§36;  Missouri,  art.  1,  §  5;  Wisconsin,  ch.  number    less    than    all.    may    jointly    or 

122,  §19;  Iowa,  §  2547  ;  Nebraska,  §  38  ;  severally   bring,   or  defend,   or   continue 

Florida,  §  69;  Kentucky,  §  35;  Nevada,  tlie  i)rosecution    or   defence  of     any  ac- 

§  13 ;  Oregon,  §  3bO,  limited  to  equitable  tion  for  the   enforcement   of    the    rights 

actions;  Dacota,  §71;  Washington,  §  8.  of  such  person  or  persons."     The  same 

*  New  York,  §  118,  California,  §§  379,  provision  is  found  in  the  California  code. 


STATUTORY    PROVISIONS    IN    RELATION    TO    PARTIES.  145 

§  118.  "  Persons  severally  [and  immediately]  liable  npon  the 
same  obligation  or  instrument,  including  the  parties  to  bills  of 
exchange  and  promissory  notes  [and  indorsers  and  guarantors, 
jffansas],  may  all  or  any  of  them  be  included  in  the  same  action 
at  the  option  of  the  plaintiff."  ^  The  corresj^onding  provision  in 
some  of  the  States  is  much  more  full,  and  more  explicitly  alters 
the  common-law  rules  in  respect  to  joint  debtors.  "  Persons 
severally  liable  on  the  same  contract,  including  the  parties  to 
bills  of  exchange  and  promissory  notes,  common  orders  and 
checks,  and  sureties  on  the  same  or  separate  instruments,  may 
all  or  any  of  them,  or  the  representatives  of  such  as  maj^  have 
died,  be  sued  in  the  same  action  at  the  plaintiff's  option."  '^ 
"  Every  person  who  shall  have  a  cause  of  action  against  several 
parties,  including  parties  to  bills  of  exchange  and  promissory 
notes,  and  be  entitled  by  law  to  a  satisfaction  therefor,  may  bring 
suit  thereon  jointly  against  all  or  as  many  of  the  persons  liable  as 
he  may  think  proper  ;  and  an  executor  or  administrator,  or  other 
person  liable  in  a  representative  character,  may  be  joined  with 
others  originally  liable,  at  the  option  of  such  person."^  "  When 
two  or  more  persons  are  [jointly,  Kentucky']  bound  by  contract  [or 
by  judgment,  decree,  or  statute,  whether  jointly  ouh-,  or  jointly 
and  severally,  or  severally,  and  including  the  parties  to  negotiable 
paper,  common  orders  or  checks,  and  sureties  on  the  same  or 
separate  instruments,  or  by  any  liability  growing  out  of  the  same, 
lowa]^  the  action  thereon  may  at  the  plaintiff's  option  be  brought 
against  all  or  any  of  them.  When  any  of  those  [the  persons, 
Kentucky']  so  bound  are  dead,  the  action  may  be  brought  against 
any  or  all  of  the  survivors,  with  any  or  all  of  the  representatives 
of  the  deceased  [with  the  representatives  of  any  or  all  of  the 
decedents,  Kentucky']^  or  against  any  or  all  of  such  representatives 
[or  against  the  latter  or  any  of  them,  Kentucky]  [when  all  the 
persons  so  bound  are  dead,  the  action  may  be  brought  against  the 

§  384,  except  that  "coparceners  "  is  sub-  strument;  "  Wisconsin,  ch.  1*22,  §  21 ;  Ne- 

stituterl   in   place  of   "copartners."      In  braska,  §  41 ;    Florida,  §  71 ;    Ohio,  §  38 ; 

the  following  States  it  is  separated  into  Indiana,  §  20 ;  California,  §  383,  adding, 

two   sections    corresponding   to  the  two  "  and  sureties  on  the  same  or  separate  in- 

paragraphs  of  the  text :  Oiiio,  §§  86,  37  ;  strument,"  after  the  words  "promissory 

Kansas,  §§   37,  38  ;  Iowa,  §§  2548,  2549  ;  notes  ;  "  S.  C.  §  143  ;  N.  C.  §  63  ;  Oregon, 

Nebraska,  §§  39,  40  ;  Kentucky,  §§  36,  37  ;  §§  36,  382 ;  Nevada,  §  15,  Ida.  §  15,  Wyo. 

Wash.  §§  8,  9.    In  Missouri,  the  first  para-  §  43,  and  Mont.  §  15,  with  same  addition 

graph  only  is  enacted,  and  is  art.  1,  §  6.  as  in  California  ;  Dakota,  §  73 ;  Wash.  §  10. 

1  New  York,  §  120;  Kansas,  §  39  ;  Min-  2  Kentucky,  §  38. 

nesota,  §  35,  "  and  sureties  on  the  same  in-  ^  Missouri,  art.  1,  §  7. 

10 


140  CIVIL    REMEDIES. 

representatives  of  all  or  of  any  of  tliem,  Kentunlcy'].  An  action  or 
judgment  against  aii}-  one  or  more  of  several  persons  jointly  bound 
shall  not  be  a  bar  to  the  proceedings  against  the  others."  ^ 

§  119.  "  (1)  The  court  may  determine  any  controversy 
between  the  parties  before  it  when  it  can  be  done  without 
prejudice  to  the  rights  of  others,  or  by  saving  their  rights ;  but 
when  a  complete  determination  of  the  controversy  cannot  be  had 
without  the  presence  of  other  parties,  the  court  must  cause  them 
to  be  brought  in. 

"  (2)  [And]  When  in  an  action  for  the  recovery  of  real  or 
personal  property,  a  person  not  a  party  to  the  action,  but  having 
an  interest  in  the  subject  thereof,  makes  apj^lication  to  the  court 
to  be  made  a  party,  it  may  order  him  to  be  brought  in  by  the 
proper  amendment. 

"  (3)  A  defendant  against  whom  an  action  is  pending  upon 
a  contract,  or  for  specific  real  or  personal  property,  may  at  any 
time  before  answer  upon  affidavit  that  a  person  not  a  party  to 
the  action,  and  wdthout  collusion  with  him,  makes  against  him  a 
demand  for  the  same  debt  or  property,  upon  due  notice  to  such 
person  and  the  adverse  part3%  apply  to  the  court  for  an  order  to 
substitute  such  person  in  his  place  and  discharge  him  from  lia- 
bilit}'  to  either  party,  on  his  depositing  in  court  the  amount  of 
the  debt,  or  delivering  the  property  or  its  value  to  such  person  as 
the  court  may  direct,  and  the  court  may  in  its  discretion  make 
the  order."  2 

1  Kentucky,  §39;  Iowa,  §2550.  In  Kan-  Dacota,  §  75.  In  these  others  they  are 
sas  all  joint  contracts  are  declared  to  be  separated  into  three  sections,  correspond- 
joint  and  several ;  on  the  death  of  one  or  ing  to  tlie  tiiree  subdivisions  of  the  text : 
more  of  the  joint  promisors  or  obligors,  Ohio,  §§  40,  41,  42;  Kansas,  §§  41,  42, 
the  right  of  action  exists  against  the  rep-  43;  Nebraska,  §§  43,  44,  45.  In  others 
resentatives  of  the  deceased  and  against  still  they  form  two  sections,  embracing 
the  survivors  ;  when  all  die,  tiie  right  of  respectively  the  first  and  second  sub- 
action  exists  against  the  representatives  divisions  and  the  third  :  Indiana,  §§  22, 
of  all  the  deceased  debtors  ;  in  ail  cases  of  23  ;  Kentucky,  §§  40,  41.  In  California,  §§ 
joint  obligations  or  joint  "  assumptions  "  389,  386,  correspond  to  the  first  and  third 
of  partners  or  others,  the  action  may  subdivisions  of  tlie  text.  In  the  others 
be  prosecuted  against  any  one  or  more  there  is  but  one  section  identical  with  the 
of  those  who  are  so  liable.  See  Gen.  first  subdivision  of  the  text:  Oregon, 
Statutes  (1868),  ch.  21,  §§1-4.  The  §§  40,  382  ;  Mis.  art.  8,  §  4  ;  Iowa,  §  2551 ; 
same  provisions  are  found  in  the  statutes  see  Minnesota,  §§  38-41 ;  Wash.  §§  12-14; 
of  Missouri,  Wagner's  Stat.,  vol.  i.  p.  269,  Wyo.  §§  45-47  ;  Mont.  §§  17-22.  The 
§§  1-4.  provisions   of    tlie   Iowa    and   California 

-  In  tiie  following  States  these  provisions  codes  in  relation  to  "  intervening,"  which 

form  a  single  section,  as  in  the  text :  New  are  very  special  and  unlike  that  in  the 

York,  §  122;  Wisconsin,  ch.  122,  §§  22,  text,  are  quoted  in  a  subsequent  section 

23;  Florida,  §73;   South  Carolina,  §  145  ;  of  this  chapter. 
N.   C.  §  65;  Nevada    §  17;  Idaho,  §  17; 


STATUTORY    PROVISIONS    IN    RELATION    TO    PARTIES.  147 

§  120.  The  following  special  provisions,  found  in  several  of  the 
States,  are  quoted,  not  because  they  are  necessarily  involved  in 
the  general  theory  of  the  reformed  system,  but  because  they  will 
serve  to  explain  a  number  of  cases  which  will  be  cited  hereafter, 
and  because  they  show  the  tendency  of  the  modern  legislation 
away  from  the  arbitrary  notions  of  the  common  law  in  respect 
of  parties.  "  A  father,  or,  in  case  of  his  death  or  desertion  of 
his  family  [or  imprisonment,  Indiana]^  the  mother,  may  pros- 
ecute as  plaintiff  for  the  seduction  of  the  daughter,  and  the 
guardian  for  the  seduction  of  the  ward,  though  the  daughter  or 
ward  is  not  living  with  or  in  the  service  of  the  plaintiff  at  the 
time  of  the  seduction  or  afterwards,  and  there  is  no  loss  of 
service."  ^  "  When  a  husband  has  deserted  his  family  [or  is  im- 
prisoned, Indiana'\^  the  wife  may  prosecute  or  defend  in  his 
name  any  action  that  he  might  have  prosecuted  or  defended,  and 
shall  have  the  same  powers  and  rights  therein  as  he  might  have 
had."  2  "A  father,  or,  in  case  of  his  death  or  desertion  of  his 
family  [or  imprisonment,  Indiana],  the  mother,  may  maintain 
an  action  for  the  injury  [or  death,  Indiana,  Oregon,  California] 
of  the  child  [an  action  for  the  expenses  and  actual  loss  of  service 
resulting  from  the  injury  or  death  of  a  minor  child,  Iowa],  and 
the  guardian  for  the  injury  [or  death,  Indiana,  Oregon,  Cal- 
ifornia] of  the  ward."  ^  "  An  unmarried  female  may  prosecute 
as  plaintiff  an  action  for  her  own  seduction,  and  recover  such 
damages  as  may  be  found  in  her  favor."  * 

§  121.  In  several  of  the  States  a  partnership  may  sue  or  be 
sued  b}'  its  firm-name  alone,  the  judgment  being  enforceable 
against  tlie  property  of  the  firm  and  of  such  members  as  are  per- 
sonally served,  provision  being  made  for  extending  its  effect  to 
the  other  members  by  some  subsequent  proceeding.  The  follow- 
ing is  the  type  of  these  provisions,  and  they  are  all  substantially 
the  same :  "An  action  may  be  brought  by  or  against  a  partner- 
ship, as  such,  or  against  all  or  either  of  the  individual  members 
thereof ;  and  a  judgment  against  the  firm,  as  such,  ma}^  be  enforced 
against  the  partnership  property,  or  that  of  such  members  as  have 
appeared  or  been  served  with  notice.  And  a  new  action  may  be 
brought  against  the  other  members  on  the  original  cause  of  ac- 

1  Minnesota,  §  32 ;    California,  §  375 ;  Iowa.  §  2556.     But  the  last  clause,  as  to 

Oregon,  §  34  ;  Indiana,  §  25.  the  guardian  and  ward,  is  not  found  in  the 

-'  Minnesota,   §    34;    Indiana,   §    26;  Iowa  code  ;  Oregon,  §  33  ;  Indiana,  §  27. 
Iowa,  §  2564.  4  Iowa,  §  2555  ;  California,  §  374 ;  Ore- 

3  Minnesota,  §  33 ;  California,  §  376 ;  gon,  §  35 ;  Indiana,  §  24. 


148  CIVIL    REMEDIES. 

tion."  ^  Certain  other  special  provisions  in  relation  to  parties  will 
be  quoted  in  subsequent  sections,  and  especially  the  legislation 
of  the  various  States  concerning  suits  by  and  against  mar- 
ried women.  This  legislation  in  several  instances  does  not 
form  a  part  of  the  codes  of  procedure,  but  is  contained  in 
separate  statutes  having  particular  reference  to  the  status  of 
marriage. 

§  122.  The  foregoing  are  all  the  provisions  relative  to  parties 
in  general.  It  is  plain,  upon  the  most  cursory  reading,  that  the  lan- 
guage of  these  sections  is  so  comprehensive,  and  without  excep- 
tion or  limitation,  that  it  appears  to  include  all  actions,  legal  and 
equitable,  and  to  apply  the  equitable  doctrines  alike  to  both  classes. 
It  should  be  observed,  however,  in  this  connection,  that  in  a  vast 
number  of  actions  stricth'  legal  the  equitable  theory  of  parties, 
as  stated  in  these  clauses,  would  determine  the  proper  parties 
thereto  in  exactly  the  same  manner  as  the  common-law  theory, 
and  there  could  arise,  then,  no  conflict.  The  possible  conflict 
which  could  arise  in  other  cases  w^ould  result  either  (1)  from 
the  old  notion  that  in  a  common-law  action  all  the  plaintiffs  must 
be  equally  interested  in  the  recovery,  and  all  the  defendants 
equally  liable  to  the  judgment,  so  that  no  person  could  be  a 
plaintiff  who  did  not  allege  for  himself  this  community  of  inter- 
est, or  be  made  a  defendant  against  whom  this  community  of 
liabilit}"  was  not  charged,  or  (2)  from  the  common-law  doctrine 
of  joint,  joint  and  several,  or  several  rights  and  liabilities  which 
controlled  to  a  very  great  extent  the  rules  as  to  parties  in  legal 
actions.  One  school  of  judges,  applying  to  this  particular  topic 
the  theory  of  interpretation  described  in  the  preceding  chapter, 
have  been  unable  to  concede  that  the  general  statutory  provisions 
quoted  above  did  repeal  and  abrogate  these  long  and  firmly  estab- 
lished rules  and  doctrines  of  the  common  law,  and  have  therefore 
wished  to  confine  their  operation  and  effect  to  equitable  actions.^ 
Another  school  of  judges,  regarding  the  codes  as  highly  remedial 
statutes,  have  been  inclined  to  follow  out  their  spirit,  and  to  give 
their  language  the  fullest  meaning  of  which  it  is  capable,  even  to 
the  extent  of  holding  that  its  general  expressions  abolished 
and  swept  away  the  legal  distinctions  between  joint,  joint  and 
several,  and  several  rights  and  liabilities.      The   influence    and 

^  Iowa,  §  2553 ;  Minnesota,  §  87  ;  Cal-  -  As  an  illustration  of  these  views,  see 
ifornia,  §  388;  Ohio,  §  629;  Nebraska,  the  opinion  of  S.  L.  Selclen  J.  in  Voorhis 
§§  24,  27.  i;.  Child's  Ex'ors,  17  N.  Y.  35i. 


THE   REAL   PARTY    IN    INTEREST    TO    BE    THE    PLAINTIFF.  149 

effect  of  these  different  systems  of  interpretation  will  be  shown  in, 
the  succeeding  sections  of  this  chapter. 

§  123.  In  a  few  of  the  States  the  legislation  has  left  no  room 
for  any  such  conflict  of  opinion,  and  has  pushed  the  equitable 
theory  to  its  final  results  by  express  enactments  which  leave  noth- 
ing to  implication.  The  codes  of  these  States  provide  for  bringing 
m  parties  to  certain  legal  actions  under  some  circumstances  merely 
because  they  have  an  interest  in  the  event  of  the  suit,  although 
they  have  no  share  in  the  relief,  and  bear  no  part  of  the  liability ; 
and  they  utterly  abrogate  the  common-law  rules  relative  to  joint, 
joint  and  several,  or  several  liabilities.  In  these  States,  there- 
fore, there  can  be  no  doubt  as  to  the  construction  which  should 
be  put  upon  the  general  statutory  provisions  quoted  ;  and  they 
are  treated  as  establishing  the  equity  doctrine  and  applying  it  to 
actions  of  all  kinds.  In  the  succeeding  sections  of  this  chapter 
I  shall  pursue  the  order  of  the  legislation  which  is  the  same  in 
all  the  States,  and  shall  separately  discuss  the  following  subjects  : 
The  Real  Party  in  Interest  to  be  made  Plaintiff;  The  Assigna- 
bility of  Things  in  Action  ;  The  Effect  of  an  Assignment  of  a 
Thing  in  Action  upon  the  Defences  to  it ;  A  Trustee  of  an  Ex- 
press Trust,  &c.,  to  sue  alone  ;  Who  may  be  joined  as  Plaintiffs  ; 
Who  may  be  joined  as  Defendants  ;  When  One  or  More  may  sue 
or  be  sued  for  All  ;  Parties  severally  liable  on  the  same  Instru- 
ment ;  Bringing  in  New  Parties  ;  Intervening ;  and  Interpleader. 
It  is  proper  to  remember  that  the  doctrine  as  to  Parties  cannot 
be  exhaustively  discussed  until  the  chapter  is  reached  which 
treats  of  Judgments.  The  subject  of  rights  and  liabilities,  joint, 
joint  and  several,  or  several,  which  is  embraced  under  the  head 
of  Judgments,  is  so  intimately  involved  with  the  subject  of  Par- 
ties that  the  two  cannot  be  completely  separated. 

SECTION    SECOND. 

THE  REAL  PARTY  IN  INTEREST  TO  BE  MADE  PLAINTIFF. 

§  124.  "  Every  action  must  be  prosecuted  in  the  name  of  the 
real  party  in  interest,  except  when  otherwise  provided  in  this  title 
[or  chapter,  or  article],"  is  the  sensible  and  comprehensive  form 
used  in  Ohio,  California,  Iowa,  Nebraska,  Wyoming,  and  Idaho. 
To   this   is  added:    "But  this  section  shall  not  be  deemed  to 


150  CIVIL   REMEDIES. 

authorize  the  assignment  of  a  thing  in  action  not  arising  out  of 
contract,"  in  New  York,  Indiana,  Kansas,  Missouri,  Wisconsin, 
Florida,  South  Carolina,  Kentucky,  Oregon,  Nevada,  Dacota, 
North  Carolina,  Washington,  and  Montana.  It  was  sometimes  said 
that  at  the  common  law  a  thing  in  action,  not  negotiable,  could 
not  be  assigned  ;  but  the  true  meaning  of  the  rule  was  merely  this, 
that  the  assignee  could  not  bring  an  action  upon  it  in  his  own 
name.  Courts  of  law  had  long  recognized  the  essential  validity 
of  such  assignment  in  a  large  class  of  cases,  by  permitting  the 
assignee,  who  sued  in  the  name  of  his  assignor,  to  have  entire 
control  of  the  action,  and  by  treating  him  as  the  only  person  im- 
mediately interested  in  the  recovery.  Indeed,  the  assignment 
gave  to  the  assignee  every  element  and  right  of  property  in  the 
demand  transferred,  except  the  single  one  of  suing  upon  it  in  his 
own  name  :  it  was  regarded  as  assets  in  his  hands  and  in  those  of 
his  personal  representatives  ;  his  rights  were  completely  protected 
asrainst  the  interference  of  the  assignor  with  an  action  brought  in 
the  latter's  name.  It  is  true,  the  property  derived  from  the  as- 
signment was  said  to  be  equitable,  and  not  legal  ;  but  this  distinc- 
tion did  not  lessen  the  intrinsic,  essential  nature  of  the  ownership. 
It  would  seem  that  the  property  of  the  assignee  is  now  strictly 
lee/al^  although  the  question  does  not  require  any  solution  in  this 
work. 

§  125.  One  effect — and  perhaps  the  principal  effect  of  this 
statutory  provision  —  is,  that  all  assignees  of  things  in  action 
which  are  assignable  may  sue  upon  them  in  their  own  names, 
and  are  no  longer  obliged  to  sue  in  the  names  of  the  original  as- 
sign ors.^  It  is  not  strictly  correct  to  say  that  the  provision  itself 
renders  any  thing  in  action  assignable,  that  it  creates  any  attri- 
bute of  assignability  ;  but,  for  the  purpose  of  defeating  such  pos- 
sible interpretation,  the  second  clause  was  added  in  many  of  the 
codes.  This  limiting  clause,  however,  is  only  negative  in  its 
form  and  meaning.  It  merely  forbids  a  certain  construction  to 
be  placed  upon  the  preceding  language.  It  does  not  say  that  no 
thins:  in  action  is  assisfnable  unless  it  arises  out  of  contract.     The 


1  This  provision  only  applies  to  "  ac-  not  an  action  ;  and  the  orif^inal  holder  of 

tions  "  as  detiiiod  in  tlie  code,  and  not  to  the  lien  who  had  assigned  it,  is  the  proper 

special  proceediiifis.     The  proceeding  to  party  to  institute  the  proceeding  for  the 

enforce  a  mechanic's  lien,  in  pursuance  of  benefit  of  his  assignee.    Hallahan  v.  Her- 

certain  special  statutes  in  New  York,  is  bert,  57  N.  Y.  409. 


THE   REAL   PARTY   IN    INTEREST   TO    BE   THE   PLAINTIFF.  151 

rules  governing  this  quality  of  things  in  action  are  found  in  other 
provisions  of  the  law,  and  not  in  this  section.  It  will  be  seen  in 
the  sequel  that  a  large  class  of  things  in  action  not  arising  out  of 
contract,  but  which  arise  out  of  torts  to  property,  may  be  assigned, 
and  that  the  assignee  may,  therefore,  bring  an  action  upon  them 
in  his  own  name.  It  is  plain,  however,  that  a  full  discussion  of 
this  section  requires  an  exhaustive  examination  of  the  question, 
What  things  in  action  may  be  assigned  ?  And  this  examination 
will  be  made  in  the  next  succeeding  section  of  the  present 
chapter. 

§  126.  The  immediate  and  in  some  respects  the  most  im- 
portant consequence  of  the  rule  that  "  every  action  must  be 
prosecuted  in  the  name  of  the  real  party  in  interest,"  is  this : 
wherever  a  thing  in  action  is  assignable,  the  assignee  thereof  must 
sue  upon  it  in  his  own  name.  I  shall  therefore,  in  the  first  place, 
discuss  this  result,  and  ascertain  the  extent  to  wliich  it  has  been 
carried,  and  the  cases  to  which  it  has  been  applied.  It  is  abun- 
dantly settled  that  when  a  thing  in  action,  transferable  by  the  law, 
is  absolutely  assigned,  so  that  the  entire  ownership  passes  to  the 
assignee  without  condition  or  reservation,  and  the  legal  title  is 
fully  vested  in  him,  he  is  the  real  party  in  interest,  and  may  sue 
upon  it  in  his  own  name,  and  is,  in  fact,  the  only  proper  party  to 
bring  the  action,  —  as  in  the  case  of  a  claim  for  the  use  and  occu- 
pation of  land  thus  assigned  ;  ^  a  partnership  demand  transferred 
by  the  other  partners  to  one  member  of  the  firm  ;  ^  a  delivery 
bond  taken  by  a  constable  for  the  delivering  up  of  property  which 
he  had  seized  on  execution  and  transferred  to  the  plaintiff  in  the 
action  ;  ^  the  right  of  action  to  recover  damages  for  a  breach  of  a 
covenant  of  seisin  in  a  deed  of  conveyance  assigned  by  the  gran- 
tee ;  *  a  claim  for  borrowed  money.°  It  was  held  in  ^Missouri  that 
the  assignee  of  a  thing  in  action  arising  out  of  contract  must  sue 
in  his  own  name,  although  there  was  no  specific  statutory  provi- 

1  Mills  V.  Murry,  1  Neb.  327,  and  a  and  see  Moorman  v.  Collier,  32  Iowa, 
claim  of  damages  for  waste  against  a  ten-  138.  Where  a  bond  is  taken  in  an  action 
ant  or  subtenant  in  favor  of  the  rever-  by  an  officer  for  the  security  of  any  par- 
sioner,  and  by  him  assigned  to  the  plain-  ticular  person,  that  person  is  the  real 
tiff.     Rutherford  v.  Aiken,  3  N.  Y.  Sup.  party  in  interest. 

Ct.  60.  4  Van  Doren  v.  Relfe,  20  Mo.  4.55  ;  Ut- 

2  Canefox   v.  Anderson,  22   Mo.  347.  ley  r.  Toy,  70  N.  C.  308  (a  land  contract). 
A  non-negotiable  note  payable  in  work,  ^  Smith  i'.  Schibel,  19  Mo.  140  ;  Knad- 
Schnier  v.  Fay,  12  Ivans.  184 ;  Williams  ler  v.  Sharp,  36  Iowa,  232,  235  (an  open 
V.  Norton,  3  Kans.  295.  account). 

3  Waterman   v.  Frank,  21    Mo.    108; 


152 


CIVIL    REMEDIES. 


sion  in  that  State  permitting  such  a  demand  to  be  assigned,  and 
the  statutoiy  provision  to  that  effect  formerly  existing  had  been 
omitted  from  the  revision  of  the  laws  then  in  force.  The  clause 
of  the  Practice  Act  [the  Code]  was  enough  to  authorize  the 
action  because  he  was  the  the  real  party  in  interest.^ 

§  127.  Not  only  does  the  rule  prevail  when  the  assignment  is 
absolute  and  complete,  and  the  assignee  is  the  legal  owner  of  the 
demand ;  it  prevails  with  equal  force  in  cases  where  the  assign- 
ment is  simply  equitable  in  its  character,  and  the  assignee's  title 
would  not  have  been  recognized  in  any  form  by  a  court  of  law 
under  the  old  system,  but  would  have  been  purely  equitable. 
Such  assignee,  being  the  real  party  in  interest,  must  bring  an 
action  in  his  own  name  ;  for,  in  respect  to  this  provision  of  the 
statute,  the  equity  doctrine  which  it  embodies  is,  beyond  a  ques- 
tion, to  be  applied  to  all  actions.^  As  illustrations:  the  person  to 
whom  an  order  is  given  by  a  creditor  upon  his  debtor  for  the 
whole  amount  of  the  demand,  although  the  debtor  has  not  ac- 
cepted nor  promised  to  pay,  is  an  equitable  assignee,  and  must 
sue  in  his  own  name  ;  ^  also,  where  a  creditor  assigns  part  of  his 


1  Long  V.  Heinrieh,  46  Mo.  603. 

2  See  Cottle  v.  Cole,  20  Iowa,  481,  485 ; 
Lytle  V.  Lytic,  2  Mete  (Ky.)  127.  In  tlie 
first  of  these  cases  Mr.  Justice  Dillon 
said :  "  The  course  of  decision  in  this 
State  establishes  this  rule  ;  viz.,  that  tlie 
party  holding  the  legal  title  of  a  note  or 
instrument  may  sue  upon  it,  though  he  be 
an  agent  or  trustee,  and  be  liable  to  ac- 
count to  anotiier  for  tiie  proceeds  of  the 
recovery ;  but  he  is  open  in  such  case  to 
any  defence  which  exists  against  the 
party  beneficially  interested.  Or  the 
party  beneficially  interested,  though  he 
may  not  have  the  legal  title,  may  sue  in 
his  own  name.  This  may  not  precisely 
accord  with  the  line  of  decisions  under 
other  codes,  but  we  think  it  liberal  and 
right,  and  conducive  to  the  practical  at- 
tainment of  justice."  In  Lytle  v.  Lj'tle, 
Duval  J.  said  (p.  128):  "Upon  the  face 
of  the  petition  in  this  case,  it  is  perfectly 
clear  that  the  plaintiff  was  not  the  owner 
of  the  debt  for  which  the  action  is  brought ; 
but  that  Harmon  [the  assignee]  is  the 
equitable  owner  of  it,  and  he  is,  therefore, 
tlie  real  party  in  interest ;  and  under  the 
plain  rule  of  ])ractice  (§  30)  tlie  action 
sliould  have  been  brought  in  his  name  as 


plaintiff.  It  is  true  that,  according  to 
§  31,  the  assignor,  Mrs.  Lytle,  was  a  neces- 
sary party  as  plaintiff  or  defendant,  as 
the  assignment  was  not  authorized  by 
statute,  and  did  not  invest  the  assignee 
with  the  legal  title  to  the  debt  assigned." 
This  last  remark  refers  to  a  clause  of  the 
Kentucky  code  requiring  the  assignor  to 
be  made  a  party  plaintiff  or  defendant, 
when  tlie  demand  is  not  negotiable,  or  the 
assignment  is  not  expressly  authorized  by 
some  statute,  so  as  to  answer  to  the 
assignment  and  his  own  interest  in  the 
subject-matter. 

»  Wheatley  v.  Strobe,  12  Cal.  92,  98  ; 
Walker  i-.  Mauro,  18  Mo.  564.  Upon 
facts  as  stated  in  the  text.  Gamble  J.  says 
in  the  last  case  :  "  The  effect  of  our  new 
code  of  practice,  in  abolishing  the  distinc- 
tions between  law  and  equity,  is  to  allow 
the  assignee  of  a  chose  in  action  to  bring 
a  suit  in  his  own  name  in  cases  where,  by 
the  common  law,  no  assignment  would  be 
recognized.  In  this  respect,  the  rules  of 
equity  are  to  prevail,  and  the  assignee 
may  sue  in  his  own  name."  He  goes  on 
to  show  that  this  is  an  equitable  though 
not  a  legal  assignment. 


THE    REAL    PARTY    IN    INTEREST   TO    BE    THE    PLAINTIFF. 


153 


claim  to  the  plaintiff,  of  which  the  debtor  has  notice  ;  ^  and  when 
a  bond  was  verbally  assigned,  and  was  delivered  by  the  ol)ligee 
to  the  plaintiff;  2  and  when  the  assignment,  though  absolute  on 
the  face,  was,  in  fact,  partial,  the  assignee  agreeing  to  account 
for  the  remaining  portion  to  the  assignor.  In  this  case  the  as- 
signor might  be  brought  in  to  protect  his  own  interests,  and,  in 
some  States,  would  be  an  indispensable  party.''  The  rule  de- 
duced   from    these    authorities   is   plain   and   imperative  :    The 


1  Grain  v.  Aldrich,  38  Cal.  514.  The 
defendant  being  indebted  to  Broolis  &  Co. 
in  tlie  sum  of  $159,000,  tlie  latter  assigned 
$14,000  of  the  claim  to  tlie  plaintiff,  who 
brings  this  action.  The  defendants  had 
notice  of  the  assignment.  Sanderson  J., 
speaking  for  the  court,  says,  that  under 
the  common-law  practice  an  assignment 
of  a  part  of  an  entire  demand  was  void 
at  law,  unless  made  with  the  consent  or 
ratification  of  the  debtor  ;  but,  "  under 
the  system  of  practice  which  prevails  in 
this  State,  such  results  do  not  follow." 
After  observations  upon  the  union  of 
legal  and  equitable  methods,  he  goes  on 
to  show  that  in  equity  the  assignee  of 
part  of  a  demand  could  maintain  an  ac- 
tion if  he  made  the  assignor  a  party. 
Had  Brooks  &  Co.  been  made  plaintiffs, 
and  a  prayer  added  for  an  account  and 
apportionment  of  the  debt,  the  strict  re- 
quirements of  the  old  equity  practice 
would  have  been  met ;  but  the  code  reaches 
the  same  result  in  a  shorter  and  simpler 
manner.  See  Shaver  v.  West.  Un.  Tel. 
Co.,  57  N.  Y.  459,  464.  A  clerk  in  the 
employ  of  tlie  corapanj',  with  the  knowl- 
edge and  assent  of  its  president,  gave  the 
plaintiff  for  value  the  following  written 
order :  "  Treas.  of  the  West.  U.  T.  Co. 
Please  pay  D.  L.  N.  $50  monthly,  com- 
mencing at,  &c.,  until  $300  is  paid,  and 
charge  same  to  my  salary  account."  He 
was  all  the  time  working  at  a  monthly  sal- 
ary exceeding  $50.  This  order  was  pre- 
sented to  the  treasurer  and  filed  with  him  ; 
before  any  payment  it  was  countermanded 
by  the  drawer.  The  holder,  suing  the 
company  claiming  to  be  an  assignee  of 
the  clerk's  claim,  the  Commission  of  Ap- 
peals lield  that  the  order  was  not  an  equi- 
table assignment,  because  it  did  not  direct 
the  jiayment  "  to  be  made  out  of  any 
designated  fund  or  particular  source." 
Dwight  J.  dissented. 

2  Conyngham  v.  Smith,  16  Iowa,  471, 


475,  per  Wright  C.  J.  "  In  other  words, 
the  equitable  rule  as  to  parties  is  now 
applied  to  law  actions,  if  the  relief  asked 
may  be  given  in  that  court.  And  there- 
fore, if  the  plaintiff  is  the  real  owner  of 
the  bond,  if  it  had  been  actually  sold  and 
transferred  to  him  by  a  valid  verbal  con- 
tract, there  is  no  reason  why,  under  our 
present  system  of  pleading  and  practice, 
he  may  not  maintain  the  action  in  the 
manner  and  form  as  stated  in  his  peti- 
tion." Barthol  i-.  Blakin,  34  Iowa,  452, 
and  Moore  v.  Lowry,  25  Iowa,  336.  Same 
decision  in  case  of  mortgages  verbally 
assigned.  S.  P.  Green  v.  Marble,  37  Iowa, 
95;  Andrews  v.  McDaniel,  68  N.  C  385 
(an  unindorsed  note). 

3  Gradwohl  v.  Harris,  29  Cal.  150. 
The  action  was  brought  by  plaintiff  as 
assignee  of  W.  &  B.  of  a  contract  for  the 
payment  of  money.  W.  &  B.  intervened, 
alleging  that,  though  the  assignment  was 
absolute  on  its  face,  it  was  actually  for  one- 
fourth  only  of  the  demand,  and  they  (W.  & 
B.)  were  entitled  to  three-fourths  of  the  re- 
covery. The  court  held  that  the  action  was 
properly  brought,  but  also  that  the  inter- 
vention was  proper,  and  gave  a  judgment 
that  the  plaintiff  recover  one-fourth  and 
W.  &  B.  three-fourths  of  the  demand. 
Such  an  intervention  and  judgment 
would  doubtless  shock  a  lawyer  bred 
in  the  old  school ;  but  it  is  convenient, 
sensible,  and  every  way  worthy  of  uni- 
versal adoption.  The  common-law  ob- 
jection that  a  divided  judgment  is  impos- 
sible is  simply  absurd  ;  the  thing  is  done, 
and  is  therefore  possible.  See  also 
Allen  V.  Brown,  44  N.  Y.  228,  231; 
Durgin  V.  Ireland,  14  N.  Y.  322;  Wil- 
liams V.  Brown,  2  Keyes,  486  ;  Paddon  v. 
Williams,  1  Robt.  340  ;  Meeker  v.  Clag- 
horn,  44  N.  Y.  349,  353;  Wetmore  j\  San 
Francisco,  44  Cal.  294,  300 ;  Lapping  v. 
Duffy,  47  Ind.  56 ;  Boyle  v.  Bobbins,  71 
N.  C.  130. 


154  CIVIL   REMEDIES, 

assignee  need  not  be  the  legal  owner  of  the  thing  in  action ;  if 
the  legal  owner,  he  must  of  course  bring  the  action ;  but,  if  the 
assignee's  right  or  ownership  is  for  any  reason  or  in  any  manner 
equitable,  he  is  still  the  proper  plaintiff,  in  most  of  the  States  the 
only  plaintiff,  although,  in  a  few,  the  assignor  should  be  joined  as 
a  plaintiff  or  as  a  defendant.  The  plain  intent  of  the  statute  is  to 
extend  the  equit}'  doctrine  and  rule  to  all  cases. ^ 

§  128.  As  the  statutory  provision  declares  that  "  every  action 
must  be  prosecuted  in  the  name  of  the  real  party  in  interest," 
the  defence  that  the  plaintiff  is  not  such  real  party  in  interest  is, 
in  general,  a  bar  to  the  suit.  This  is  certainly  so  when  the  plain- 
tiff is  the  assignee  of  any  thing  in  action  not  negotiable,  and  the 
issue  raised  by  an  answer  setting  up  such  defence  would  be  simplj'' 
whether  the  j)laintiff  was,  upon  the  proof,  the  real  party  in  inter- 
est. If,  however,  the  thing  in  action  is  an  instrument  negotiable 
in  its  nature,  the  subject  is  complicated  by  the  special  doctrines 
and  rules  of  the  law  which  relate  to  the  quality  of  negotiabiUty. 
It  is  elementary  that  possession  of  negotiable  paper,  payable  to 
bearer,  is  at  lenat  priina  facie  evidence  of  ownership;  and  it  is 
also  settled  that  when  such  paper,  payable  to  order,  is  indorsed 
and  delivered  to  the  indorsee,  the  legal  title  passes  to  him,  and 
he  may  maintain  an  action  thereon  ;  while  the  maker,  acceptor, 
or  indorsers  cannot  question  his  title,  at  least  in  any  manner 
short  of  impeaching  its  good  faith.  This  legal  title  carried  with 
it  the  right  to  sue,  no  matter  what  arrangements  might  be  made 
between  him  and  his  immediate  indorser  concerning  the  use  of 
the  proceeds.  The  question,  then,  arises.  Has  the  rule  introduced 
by  the  code  changed  these  established  doctrines  ?  Does  the  ap- 
parent and  formal  legal  ownership  resulting  from  the  possession 
of  a  negotiable  instrument  payable  to  bearer,  or  from  the  indorse- 
ment and  possession  of  similar  paper  payable  to  order,  constitute 
the  plaintiff  the  real  party  in  interest  within  the  meaning  of  the 
code  ?  Or  may  the  defendant  go  behind  this  formal  title,  and 
show  that  some  otlier  person  is  the  real  j^arty  in  interest,  and  thus 
defeat  the  action  ?     If  the  latter  query  must  be  answered  affirm- 

1  McDonald  v.  Kneeland,  5  Minn.  352,  provision  of  the  code  seems  to  liave  been 
365,  per  Atwater  J.  "  Tlie  code  has  to  assimilate  the  practice  in  courts  of  law 
wisely  dispensed  with  the  absurdity  of  to  that  which  al\va3's  prevails  in  courts  of 
requiring  the  assignee  to  use  the  name  of  equity,  in  permitting  the  real  party  in  in- 
the  assignor  in  bringing  suits,  but  it  does  terest  to  sue  in  his  own  nairie.  'i'iie  inter- 
not  therefore  follow  that  the  legal  estate  in  est  or  right  acquired  tmder  this  assignment 
the  thing  assigned  passes  to  the  assignee ;  is  an  equitable  one." 
on  the  contrary,  the  only  object  of  this 


THE    REAL    PARTY    IN    INTEREST    TO    BE    THE    PLAINTIFF.  155 

atively,  it  is  evident  that  the  statutory  provision  under  consid- 
eration has  made  an  important  change  in  the  law  of  negotiable 
paper.  The  question  thus  proposed  has  given  rise  to  some  con- 
flict in  opinion,  and  is  not  entirely  free  from  doubt.  On  the  one 
side,  it  has  been  urged  that  the  language  of  the  section  in  all  the 
State  codes  is  most  general  and  comprehensive,  containing  no  ex- 
ception in  terms  nor  by  implication,  and  that  it  is,  in  its  highest 
degree,  imperative,  "  must  be  prosecuted  in  the  name  of  the  real 
party  in  interest,"  except  in  the  single  case  of  "  the  trustee  of  an 
express  trust,"  and  that  the  real  party  in  interest  is  the  person 
for  whose  immediate  benefit  the  action  is  prosecuted,  who  con- 
trols the  recovery,  and  not,  the  person  in  Avhom  the  mere  naked 
apparent  legal  title  is  vested.  On  the  other  side,  it  is  urged  that 
the  rule  permitting  such  a  holder  or  indorsee  to  prosecute  the 
action  is  one  of  the  elementary  doctrines  of  the  law  relating  to 
negotiable  paper,  —  a  rule,  not  of  practice  or  procedure,  but  of 
the  mercantile  and  commercial  law, — and  that  the  legislature 
cannot  have  intended,  by  such  a  general  clause  of  a  statute  con- 
cerning procedure,  to  abrogate  well-settled  principles  of  the 
law-merchant.  I  will  examine  and  compare  some  of  the  cases  in 
which  the  question  has  been  discussed. 

§  129.  In  Edwards  v.  Campbell,^  which  was  an  action  upon  a 
note  payable  to  bearer,  the  plaintiff  had  the  note  in  his  possession  ; 
but  a  judgment  in  his  favor  was  reversed  on  the  ground  that  he  was 
not  the  real  party  in  interest.  Killmore  v.  Culver  ^  was  an  action 
upon  a  promissory  note  payable  to  Tanner  or  bearer.  The  an- 
swer denied  the  plaintiff's  ownership,  and  alleged  that  Tanner 
was  the  real  owner.  It  was  sufficiently  established  by  the  evi- 
dence that  the  plaintiff  was  acting  simply  as  agent  for  Tanner, 
and  would  be  immediately  accountable  to  the  latter  for  all  the 
money  recovered.  These  facts  were  held  to  constitute  a  com- 
plete defence,  on  the  ground  that  Tanner  was  the  real  party  in 
interest,  and  should  have  been  the  plaintiff.  In  James  v.  Chal- 
mers,^ it  was  said  by  one  of  the  judges  of  the  New  York  Court  of 

1  Edwards  v.  Campbell,  23  Barb.  423.  for,  should  lie  recover,  the  money  must  go 

-  Killmore  v.    Culver,    24   Barb.  656,  to  T.,  and,  sliould  he  fail,  the  loss  would 

657,  per  S.  B.  Strong  J.     "Is,  then,  this  not  be  his,  but  would  fall  upon  T." 

plaintiff  the  real  party  in  interest  ?      It  3  James  v.  Chahners,  6  N.  Y.  209,  215, 

seems  to  me  from  the  evidence  given  by  per   Welles  J.     It   is  held   in   Hereth  v. 

himself  and  T.  that  he  is  not.     He  is  not  Smith,  33  Ind.  514,  and  cases  cited,  that, 

at  all  interested  in  the  event  of  the  suit ;  if  the  defendant  desires  to  raise  the  issue 


156 


CIVIL    REMEDIES. 


Appeals,  in  reference  to  actions  upon  negotiable  paper :  "  Under 
the  code  of  procedure,  if  it  appears  that  the  plaintiff  is  not  the 
real  party  in  interest,  it  is  a  bar  to  the  action,  and  no  furtlier  de- 
fence is  necessary."  The  question  was  very  elal)oi'ately  discussed 
by  the  courts  of  New  York  in  Eaton  v.  Alger,^  wliich  was  an  action 
by  the  indorsee  of  a  note.  The  Supreme  Court  held  tliat  the  de- 
fendants might  prove  that  the  plaintiff  had  no  interest  in  the  note, 
but  was  a  mere  agent  of  the  payee,  and  was  bound  to  account  to 
him,  on  demand,  for  the  proceeds,  and  that  these  facts  would 
constitute  a  complete  defence  to  the  action. 

§  130.  Cases  of  higher  authority,  because  decided  by  the  New 


in  such  an  action,  he  must  allege  facts 
showing  that  the  plaintiff  is  not  the  true 
party  in  interest ;  a  denial  is  not  suffi- 
cient. 

1  Eaton  V.  Alger,  57  Barb.  179,  189. 
As  the  opinion  of  the  court  by  James  J. 
in  this  case  contains  a  full  statement  of 
the  argument  in  favor  of  the  conclusion 
reached,  I  quote  from  it  at  considerable 
length.  Evidence  offered  to  prove  the 
facts  mentioned  in  the  text  was  rejected 
on  the  trial,  and  a  verdict  was  ordered  for 
the  plaintiff.  "  The  question  in  this  case 
is,  wiiether  the  defendants  should  have 
been  allowed  to  prove  that  the  plaintiff 
is  not  the  real  owner  of  the  note  in  suit. 
Every  action  is  required  to  be  brought  in 
the  name  of  the  real  party  in  interest,  ex- 
cept as  otherwise  provided.  No  other 
provision  covers  a  case  like  this.  It  would, 
therefore,  seem  very  clear  that  a  defend- 
ant, on  such  an  issue  made  by  the  plead- 
ings, would  have  the  right  to  show  tliat 
the  plaintiff  \s'as  not  the  real  party  in 
interest,  particularly  if  he  had  pleaded  a 
defence  in  tlie  action  good  as  against  such 
pretended  real  party.  The  plaintiff,  how- 
ever, insists  that,  notwithstanding  this 
provision  of  the  code,  the  indorsee  of  a 
note,  or  the  holder  of  a  note  payable  to 
bearer  or  indorsed  in  blank,  may  main- 
tain an  action  upon  it,  although  not  in 
fact  the  owner,  nor,  as  between  himself 
and  the  owner,  entitled  to  the  proceeds 
when  collected.  That  such  was  the  rule 
before  the  code  is  conceded,  and  the  argu- 
ment is  that  it  was  abolished  by  the  code." 
Quoting  from  tiie  Report  of  the  Code 
Commissioners  in  relation  to  the  section 
in  question,  he  proceeds  :   "  This  section 


(§  111)  was  adopted  by  the  legislature 
precisely  as  submitted  by  the  codifiers, 
showing  that  they  approved  of  the  reasons 
given  by  the  codifiers  for  its  adaption. 
It  is  quite  immaterial,  therefore,  what 
was  the  rule  previous  to  the  code,  if  there- 
by the  legislature  intended  to  and  did 
change  the  rule  by  express  enactment. 
That  they  did  so,  we  think,  is  clear  from 
the  language  of  the  statute  and  the  rea- 
sons for  its  adoption.  In  tlieir  reasoning, 
the  codifiers  alluded  to  the  existing  rules, 
and  the  necessity  for  a  revision,  one  pur- 
pose of  the  proposed  change  being  to 
require  the  real  person  in  interest  to  appear 
in  court  as  such,  followed  by  an  act  pro- 
viding that  '  every  action  must  be  prose- 
cuted in  the  name  of  the  real  party  in 
interest.'  This  reasoning  and  this  act 
seem  too  plain  for  misconception.  The 
act  is  emphatic ;  it  uses  the  Saxon  word 
'  must,'  —  a  verb  which  has  not  yet  been 
twisted  by  judicial  construction,  like  the 
words  '  may  '  or  '  shall,'  into  meaning 
something  else,  —  to  place  beyond  doubt 
or  cavil  what  is  intended."  He  then  cites 
the  cases  already  quoted  above  in  the 
text,  and  claims  that  the  case  in  hand  is 
distinguishable  from  Bank  of  New  Haven 
r.  Perkins,  29  N.  Y.  554,  and  Brown  v. 
Penfield,  36  N.  Y.  473.  He  concludes  as 
follows  :  "  The  law  of  this  State  no  longer 
permits  actions  to  be  prosecuted  in  the 
name  of  nominal  plaintiffs.  The  moment 
that  fact  appears,  the  action  is  ended,  no 
matter  what  the  character  of  the  instru- 
ment on  which  it  is  founded,  whether 
negotiable  or  not,  or  whether  the  defend- 
ant has  or  has  not  any  defence  to  the 
indebtedness." 


THE    REAL    PARTY    IN    INTEREST    TO    BE    THE    PLAINTIFF.  157 

York  Court  of  Appeals,  have  establislied  the  other  rule  for  that 
State.  In  City  Bank  of  New  Haven  v.  Perkins, ^  the  rule  which 
prevailed  prior  to  the  code  was  reaffirmed  and  applied  to  the 
facts  before  the  court,  although  no  allusion  was  made  in  its  opinion 
to  the  provisions  of  §  111.  The  doctrine  was  stated  as  follows  : 
"  Nothing  short  of  mala  fides  or  notice  thereof  will  enable  a  maker 
or  indorser  of  such  paper  to  defeat  an  action  brought  upon  it  by 
one  who  is  apparently  a  regular  indorsee  or  holder,  especially 
when  there  is  no  defence  to  the  indebtedness.  As  to  any  thing 
beyond  the  bona  fides  of  the  holder,  the  defendant,  who  owes  the 
debt,  has  no  interest."  The  same  rule  was  repeated  in  Brown  v. 
Penheld;^  but  in  this  case  also  there  was  no  reference  made  to 
the  provision  of  the  code  relating  to  the  real  party  in  interest. 
It  might  be  considered  doubtful  whether  the  question  had  been 
put  to  rest  by  these  two  decisions,  but  all  doubt  has  been  removed. 
The  case  of  Eaton  v.  Alger  was  carried  to  the  Court  of  Appeals ; 
the  opinion  of  the  Supreme  Court  was  overruled  ;  and  the  original 
rule  of  the  law  in  reference  to  suits  upon  negotiable  paper  was  ex- 
pressly held  not  to  have  been  changed  by  the  code.'^  In  this  con- 
flict among  the  decisions,  the  judgment  of  the  court  of  last  resort 
of  course  prevails ;  and  the  question  is  thus  settled  in  New  York 
by  the  force  of  authority,  whatever  may  be  thought  of  the  com- 
parative weight  of  the  argument  in  support  of  either  rule. 

§  131.  The  doctrine  which  prevails  in  Iowa  seems  to  be  the 
same  as  that  now  established  in  New  York.^  The  construction 
given  to  the  statutory  provision  by  the  court  of  ludiana  is  en- 

•  City  Bank  v.  Perkins,  29  N.  Y.  554,  courts  thus  held  that  the  plaintiff  was  the 

508,  per  Johnson  J.     The  learned  judge  assignee  of  T.  &  Co..  and  was  the  owner 

also  said:  "  It  will  be  time  enough  to  de-  of  the   paper.      This   ruling   completely 

termine  whetlier  any  other  person  has  a  disposed  of  the  case  ;  and  the  whole  dis- 

better  title  when  such  person  siiall  come  cussion    which  the   learned  chief  justice 

before  the  court  to  claim  the  bills  in  ques-  thought  proper  to  add  was  entirely  un- 

tion,  or  their  proceeds,  from  the  plaintifl"."  neccssar\'. 

-  Brown    v.   Penfleld,    30   N.    Y.  473.  3  Eaton  v.  Alger,  47  N.  X.  345  ;  s.  c. 

The  remarks  of  Davies  C.  J.,  in  which  2  Keyes,  41. 

this  doctrine  was  reasserted,  were,  how-  *  Cotter  i-.  Cole,  20  Iowa,  481,  485,  per 

ever,  mere  ubiter  dicta.     The  action  was  Dillon  J.     "  The  course  of  decision    in 

by  the  plaintiff  as  assignee  of  T.  &  Co.  this  State  establishes  this  rule;  viz.,  that 

The  referee  before  whom  the  cause  was  the  party  holding  the  legal  title  of  a  note 

tried  found,  as  a  fact,  that  T  &  Co.  never  or  instrument  may  sue  on  it,  though  he 

assigned  tlie  bills  in  suit  to  the  plaintiff,  be  an  agent  or  trustee,  and  liable  to  ac- 

The  Supreme  Court  reversed  this  finding,  count  to  another  for  the  proceeds  of  the 

on  the  ground  that  it  was  contrary  to  the  recovery ;  but  he  is  open  in  such  case  to 

evidence  ;  and  the   Court  of  Appeals  af-  any  defence  which  may  exist  against  the 

firmed   the   latter   decision.      These   two  person  beneficially  interested." 


158 


CIVIL    REMEDIES. 


tively  different,  as  it  is  held  to  include  the  indorsee  and  holder  of 
negotiable  paper  as  well  as  the  assignee  of  any  other  thing  in 
action.  Such  indorsee  or  holder,  although  possessed  of  the  naked 
legal  title,  is  not  the  real  party  in  interest,  and  is  not  authorized 
to  sue,  if  tiie  beneficial  interest  and  the  whole  right  to  the  pro- 
ceeds of  the  recovery  is  in  another  party. ^  It  is,  however,  a 
settled  rule  of  pleading  in  Indiana,  that  an  answer  merely  aver- 
ring that  the  plaintiff  is  not  the  real  party  in  interest,  but  that 
some  other  .person  named  is  the  real  party,  Avithout  .alleging  any 
facts  from  which  these  conclusions  would  arise,  presents  no 
issue. ^  In  Kentucky  also  the  defence  that  the  plaintiff  is  not  the 
real  party  in  interest  may  be  set  up  in  an  action  upon  a  promis- 
sory note  or  other  negotiable  instrument  brought  by  the  person 
who  is  the  apparent  holder,  or  who  has  the  naked  legal  title, 
although  in  that  State,  by  virtue  of  an  express  provision  of  the 
code,  the  person  having  the  legal  title  must  also  be  made  a  party, 


>  Swift  V.  Ellsworth,  10  Ind.  205. 
Ellswortli  sued  on  a  note  made  by  Swift 
to  one  Kowe,  and  transferred  by  R.  to 
the  plaintiff.  The  answer  set  up,  as  the 
fourth  defence,  that  the  note  was  assij^ned 
by  Rowe  to  the  j)iaintitt" to  secure  the  sum 
of  §2,500,  which  Rowe  owed  to  tlie  plaintiff, 
and  for  no  other  consideration  ;  that  after- 
wards the  defendant  paid  to  the  plaintiff' 
the  said  sum  of  ■'?2,500,  being  all  the  inter- 
est of  the  phiintiflf' in  the  said  note,  and  that 
the  plaintiff'  has  not  since  acquired  any 
interest  in  the  residue  of  the  said  note ; 
that  the  plaintiff'  is  not  the  real  party  in 
interest  in  this  action,  but  that  the  said 
liowe  is  the  exclusive  owner  of  said  note. 
This  defence  was  held  to  be  good  on  de- 
murrer thereto.  After  citing  tlie  Revised 
Statutes  of  Indiana,  which  peimit  the  as- 
signment of  negotiable  paper,  and  ex- 
pressly declare  that  the  assignee  may  sue 
tliereon  in  his  own  luinie,  and  quoting  the 
provisions  of  the  code  passed  subsequently 
to  the  statute  first  referred  to,  which  pro- 
vide for  suits  being  brought  by  the  real 
party  in  interest,  and  also  by  "a  trustee 
of  an  express  trust  or  a  person  expressly 
authorized  by  statute  to  sue,"  Hanna  J., 
who  delivered  the  opinion  of  the  court, 
proceeds  as  follows  :  "  Is  the  assignee  of 
a  promissory  note,  who  may  hold  it  as 
such  without  any  real  interest,  one  of  that 
class  of  persons  here  referred  to  as  being 


'expressly  autliorized  by  statute'  to 
sue  ?  Or  does  the  provision  have  refer- 
ence to  anotiier  class  of  persons,  such  as 
guardians  of  an  idiot,  &c.  1  We  are  of 
opinion  that  the  clause  of  the  section 
above  quoted  does  not  have  reference  to 
the  rights  of  an  assignee  of  a  promissory 
note,  but  to  such  jiersons  as  may  be  au- 
thorized to  sue  in  their  own  names,  be- 
cause of  holding  some  official  position,  as 
the  president  of  a  bank,  or  the  trustee  of 
a  civil  township.  It  therefore  follows 
that  the  real  party  in  interest,  as  was  for- 
merly the  rule  in  equity,  must  bring  the 
action,  subject  to  the  provisions  and  ex- 
ceptions of  the  statute,  and  that,  if  any 
other  than  those  thus  authorized  should 
bring  suit  as  plaintiff's,  an  answer  showing 
affirmatively  the  facts  is  a  good  answer." 
It  will  be  noticed  that  the  general  provi- 
sion of  the  code  in  question  was  made  to 
override  an  express  permission  given  by  a 
prior  statute  to  all  assignees  of  negotiable 
paper  to  sue  upon  the  same  in  their  own 
names.  This  is  therefore  a  much  stronger 
case  than  any  which  has  arisen  in  New 
York.  See  also  Giilispie  v.  Fort  Wayne, 
&c.  R.  R.,  12  Ind.  3'J8. 

-  Lamson  v.  Falls,  6  Ind.  309;  Mew- 
herter  v.  Price,  11  Ind.  199;  Garrison  v. 
Clark,  11  Ind.  StJ'J ;  Swift  i;.  Ellsworth, 
10  Ind.  205  ;  Hereth  v.  Smitii,  33  Ind.  514, 
and  cases  cited. 


THE    REAL    PARTY    IN    INTEREST    TO    BE    THE    PLAINTIFF.  159 

either  plaintiff  or  defendant. ^  In  an  action  by  the  assignee  of  a 
note  against  the  maker  thereof,  it  is  no  defence  to  show  that  the 
assignment  was  made  Avith  intent  to  defraud  certain  creditors  of 
the  assignor.  This  does  not  make  the  plaintiff  any  the  less  the 
real  party  in  interest.  As  the  assignor  participates  in  the  fraud, 
he  could  not  repudiate  his  transfer,  and  has  parted  with  all  pos- 
sible interest  in  the  note.^  Whenever  the  defence  that  the  plain- 
tiff is  not  the  real  party  in  interest  is  allowable,  it  must  be 
pleaded  in  the  answer;  if  not,  it  will  be  regarded  as  waived.^ 

§  132.  Analogous  to  the  subject  discussed  in  the  preceding 
paragraph  is  the  question  whether  an  assignee,  to  whom  a  thing 
in  action  has  been  transferred  b}-  an  assignment  which  is  absolute 
in  its  terms,  so  as  to  vest  in  him  the  entire  legal  title,  but  which, 
by  means  of  a  contemporaneous  and  collateral  agreement,  is,  in 
fact,  rendered  conditional  or  partial,  is  the  real  party  in  interest. 
It  is  now  settled  by  a  great  preponderance  of  authority,  although 
there  is  some  conflict,  that  if  the  assignment,  whether  written  or 
verbal,  of  any  thing  in  action  is  absolute  in  its  terms,  so  that  by 
virtue  thereof  the  entire  apparent  legal  title  vests  in  the  assignee, 
any  contemporaneous,  collateral  agreement  by  virtue  of  which  he 
is  to  receive  a  part  only  of  the  proceeds,  "  and  is  to  account  to 
the  assignor  or  other  person  for  the  residue,  or  even  is  to  thus 
account  for  the  whole  proceeds,  or  by  virtue  of  which  the  abso- 
lute transfer  is  made  conditional  upon  the  fact  of  recovery,  or  by 
which  his  title  is  in  any  other  similar  manner  partial  or  conditional,'' 
does  not  render  him  any  the  less  the  real  party  in  interest :  he  is 
entitled  to  sue  in  his  own  name,  whatever  collateral  arrangements 
have  been  made  between  him  and  the  assignor  respecting  the 
proceeds.  The  debtor  is  completely  protected  by  the  assignment, 
and  cannot  be  exposed  to  a  second  action  brought  by  any  of  the 
parties,  either  the  assignor  or  other,  to  whom  the  assignee  is 
bound  to  account.  This  is  the  settled  doctrine  in  most  of  the 
States.^     Notwithstanding  the  general  unanimity  of  the  courts  in 

1  Carpenter  v.  Miles,  17  B.  Mon.  598,  44  N.  Y.  349,  353  (facts  similar  to  the 
602.  last) ;  Wetmore  v.  San  Francisco,  44  Cal. 

2  Rohrer  v.  Turrill,  4  Minn.  407.  294  (assignment  made  as  collateral  secu- 

3  Savage  v.  Corn  Exch.  Ins.  Co,  4  rity);  Durgin  v.  Ireland,  14  N.  Y".  322 
Bosw.  2.  (assignment  in  writing  absolute,  but  by  a 

*  Allen  «.  Brown,  44  N.  Y.  228,  231  contemporaneous  agreement  the  assignors 

(assignment    without   consideration,   and  were    to   have    one-half    the   proceeds)  ; 

assignee  to  be  accountable  to  the  assignor  Castner  i'.  Sumner,  2  Minn.  44  ;  Williams 

for  all  the  proceeds) ;  Meeker  v.  Claghorn,  v.  Norton,  3  Kans.  295 ;  Cottle  i'.  Cole,  20 


160 


CIVIL    RKMEDIES. 


siistaiiuDg  this  doctrine,  there  are  still  some  indications  of  a  dif- 
ferent opinion,  although  it  can  hardly  be  said  that  this  difference 
has  been  embodied  in  an  adjudication  as  the  ratio  decidendi.  The 
opinion  to  which  I  refer  will  be  found  at  large  in  the  note,  as  it  is 
an  able  argument  upon  that  side  of  the  question.^  Embraced 
within  the  same  principle,  and  governed  by  the  same  rule,  is  the 
case  of  an  assignee  of  a  thing  in  action  who,  by  the  terms  of  the 
transfer,  is  not  bound  to  pay  the  consideration  thereof  until  the 


Iowa,  481 ;  Curtis  v.  Molir,  18  Wis.  615; 
Hilton  V.  Waring,  7  Wis.  492  (assignment 
as  collateral  security)  ;  Wilson  v.  Clark, 
11  Ind.  o85;  Gradwohl  v.  Harris,  29  Cal. 
150.  In  Castner  v.  Cook  the  notes  in 
suit,  which  were  for  §3,100,  were  assigned 
as  security  for  -^l.SOO,  owing  by  the  payee 
to  the  plaintitfi  the  latter  giving  back  a 
bond  to  pay  over  the  balance  after  satis- 
fying his  own  demand.  Upon  these  facts, 
the  court,  per  Atwater  J.,  said  :  "  There 
may  be  a  question  as  to  whether  the  as- 
signment of  the  notes  was  absolute,  or 
whether  a  contingent  interest  remained  in 
the  assignor.  But  in  either  case  the  ac- 
tion is  properly  brought  in  the  name  of 
the  plaintiff.  .  .  .  The  plaintiff  was  to  re- 
ceive the  money  ;  and,  if  authorized  to 
receive  it,  the  right  to  bring  suit  to  collect 
it  necessarily  follows.  Whatever  maybe 
the  relations  of  the  plaintiff  to  the  assignor 
can  make  no  difference  to  the  defend- 
ants. They  can  only  raise  the  objection 
of  a  defect  of  parties  to  the  suit,  when  it 
appears  that  some  other  person  or  party 
than  the  plaintiff  has  such  a  legal  interest 
in  the  note  that  a  recovery  by  tiie  plain- 
tiff would  not  preclude  its  being  enforced, 
and  they  be  thereby  subjected  to  the  risk 
of  another  suit  for  the  same  subject-mat- 
ter. Wilson  [the  assignor]  liad  no  such 
interest.  He  had  no  interest  in  the 
notes,  and  not  even  a  certain  resulting 
interest  in  the  proceeds  of  the  notes." 
In  Williams  v.  Norton  a  note  payable 
to  the  order  of  the  payee  had  been 
verbally  transferred  and  delivered  to 
the  plaintiff  without  indorsement.  The 
action  by  such  assignee  was  held  to  be 
properly  brought,  even  though  he  may 
not  be  entitled  to  apply  to  his  own  use  the 
whole  proceeds.  "A  delivery  by  the 
payee  to  his   surety  or  indemnitor,  with 


authority  to  receive  the  money  and  pay 
the  principal  debt,  will  enable  the  surety 
to  sue  in  his  own  name.  He  will,  within 
the  meaning  of  the  code,  be  the  real  party 
in  interest." 

'  Robins  v.  Deverill,  20  Wis.  142. 
The  plaintiff  sues  as  assignee  of  Peet 
&  Williams.  Dixon  C.  J.  gave  the  fol- 
lowing opinion  (p.  148) :  "  The  statute  is 
imperative  that  every  action  must  be 
prosecuted  in  the  name  of  tlie  real  party  in 
interest,  except  as  tiierein  otherwise  jiro- 
vided.  The  proof  is  that  the  plaintiff  is 
not  the  owner  of  the  demand  sued  upon. 
It  belongs  to  the  firm  of  li.  &  L.,  com- 
posed of  the  plaintifi,  his  brother,  and  one 
Lewis.  The  demand  was  transferred  to 
the  plaintifi'  alone  by  words  of  absolute 
assignment,  no  trust  being  expressed ; 
but,  as  the  plaintifi  himself  testifies,  he 
holds  it  nevertheless  in  trust  for  his  firm. 
It  was  received  on  account  of  a  debt  due 
the  firm  of  K.  &  L.  from  P.  &  W.  Upon 
these  facts,  it  seems  to  me  the  plaintiff 
cannot  maintain  the  action.  He  is  not 
the  real  party  in  interest,  nor  the  trustee 
of  an  express  trust  within  the  meaning 
of  the  statute.  His  brotlier  and  Lewis 
should  have  been  joined  as  plaintiffs." 
After  describing  the  requisites  necessary 
to  constitute  a  trustee  of  an  express  trust, 
the  judge  concludes :  "  In  this  case  no 
agreement  is  shown  that  the  plaintiff  was 
to  take  or  hold  as  trustee ;  and  that  he  is 
a  trustee  results  only  from  other  circum- 
stances. It  is  implied  from  the  facts  of 
the  partnersliip,  and  that  the  ])laintiff  re- 
ceived the  assignment  on  account  of  a 
debt  due  the  firm."  The  couii  refused  to 
pass  upon  these  questions,  holding  that 
they  were  not  raised  by  the  pleadings  in 
the  cause ;  that  a  defect  of  parties  (if  any) 
had  been  waived. 


THE    REAL    PARTY    IN    INTEREST    TO    BE    THE    PLAINTIFF.  161 

debt  has  been  collected  ;  he  is  the  real  party  in  interest,  and  is 
fully  authorized  to  sue  in  his  own  name.^ 

§  133.  The  following  are  particular  cases  in  which  the  assignee 
was  held  by  the  courts  to  be  the  real  party  in  interest  within 
the  meaning  of  the  codes,  and  entitled  as  such  to  sue  in  his  own 
name  :  Where  a  bond  or  a  mortgage  was  assigned  verbally  ;  ^  the 
assignment  of  a  receipt  and  delivery  order,  which  was  in  the  fol- 
lowing words :  "  1000  bushels  of  corn.  Received  in  store,  on 
account  of  S.  F.  A.,  1000  Inishels  of  corn,  to  be  delivered  to  his 
order  at,  etc.  etc.  (signed)  W.  H.  H.  ; "  ^  assignment  of  a 
promissory  note  payable  to  order  without  any  indorsement;* 
the  assignment  of  a  debt  evidenced  by  a  lost  note  ;  °  where  the 
assignment  of  a  bond  or  note  was  by  means  of  a  separate  instru- 
ment in  writing;*^  the  assignment  of  a  claim  arising  from  an 
greement  to  pay  the  defendant  in  a  certain  pending  suit  a  stipu- 
lated sum  of  money  if  he  would  withdraw  his  defence  ; '''  the 
assignment  of  a  claim  for  damages  resulting  from  the  wrongful 
conversion  of  chattels ;  ^  the  assignment  by  a  widow  of  her  right 
of  dovv^er  after  the  death  of  her  husband,  but  before  the  dower 
had  been  set  apart  to  her.'^  The  mere  parting  with  the  posses- 
sion of  a  note  does  not,  however,  constitute  an  assignment  thereof, 
and  the  owner  is  the  proper  party  to  sue,  although  the  instrument 
is  in  the  hands  of  another  person  with  whom  it  has  been  depos- 
ited.**^    The  assignee  of  a  foreign  executor  or  administrator  may 

1  Cummings  v.  Morris,  25  N.  Y.  G25;  ~  Conyngham  v.  Smith,  16  Towa,  471  ; 

8.    c.    3    Bosw.   560.     !In    delivering   tlie  Bartliol  i'.  Biakin,  34Iowa,  452 ;  Green  u. 

judgment  of  the   Court  of  Appeals,  Al-  Marble,  37  Iowa,  95 ;  Andrews  v.  McDan- 

len  J.  said   (p.  027)  :  "  The  object  of  the  iel,  68  N.  C.  385. 

provision  (§  111)  was  to  abolisii  tlie  dis-  ^  Mercliants  and   Mechanics   Bank  v. 

tinction  between  the  former  practice  of  Hewitt,   3  Iowa,  93. 
courts  of  chancery  and  of  common   law,  ••  Carpenter  v.  Miles,  17  B.  Mon.  598  ; 

and  to  give  full  effect  at  law,  as  well  as  in  White  v.  Phelps,  14  Minn.  27  ;  Pease  v. 

equity,  to  assignments  of  rights  in  action,  Rush,  2    Minn.    107;    Pearson    v.    Cum- 

by  permitting  and  requiring  thejassignee  mings,  28  Iowa,  344;  Hancock  v.  Ritchie, 

to  sue  in  iiis  own  name.     If  between  the  11  Ind.  48. 

assignor   and    the   assignee   the  transfer  ^  Long  v.  Constant,  19  Mo.  320. 

is  complete,  so  that  the  former  is  divested  "  Thornton  v.  Crowther,  24  Mo.  164  ; 

of  all  control  and  right  to   the  cauf^e  of  Peters  r.  St.  Louis,  &c.,  R.  R,  24  Mo.  586. 
action,  and  the  latter  is  entitled  to  control  1  Gray  v.  Garrison,  9  Cal.  325. 

it  and  receive  its  fruits,  the  assignee  is  the  ^  Smith  v.  Kennett,  18  Mo.  154;  Laz- 

real  party  in  interest,  whether  the  assign-  ard  v.  Wheeler,  22  Cal.  139.     In  this  last 

ment  was  with  or  without  consideration,  case,  an  action  by  the  assignee  to  recover 

and    notwithstanding   the   assignee   may  possession  of  the  chattels  was  sustained, 
have  taken  it  subject  to  all  equities  be-  9  Strong  v.  Clem,  12  Ind.  37. 

tween  the  assignor  and  third  persons."  i"  Selden  v.  Pringle,  17  Barb.  458. 

11 


162  CIVIL   REMEDIES. 

maintain  an  action  in  his  own  name  to  recover  a  debt  <lne  to  the 
estate  from  a  person  residing  within  the  State  in  wliich  the  suit 
is  brought.^  Upon  the  same  principle,  when  a  demand  not  aris- 
ing Avithin  the  State,  in  favor  of  one  foreign  corporation  against 
another  foreign  corporation,  is  assigned  to  a  resident  of  the  State, 
such  assignee  may  maintain  an  action  upon  it  against  the  debtor 
corporation,  although  the  original  creditor  is  expressly  forbidden 
by  statute  to  sue  under  such  circumstances.  The  prohibition  of 
an  action  between  the  foreign  corporations  does  not  affect  the 
assignability  of  the  claim."'^ 

§  134.  The  assignee  of  a  judgment  recovered  by  the  defendant 
in  an  action  brought  to  recover  the  possession  of  chattels  may 
sue  in  his  own  name  upon  a  bond  given  by  the  plaintiff  upon  the 
requisition  made  for  a  delivery  of  the  goods  to  him.  The  assign- 
ment of  the  judgment  carries  with  it  all  demands  arising  upon 
this  bond  or  undertaking,  and  the  assignee  is  the  real  party  in 
mterest.^  In  like  manner,  the  assignee  of  a  judgment  recovered 
against  a  sheriff  for  official  misconduct  in  seizing  the  plaintift^'s 
property  may  bring  an  action  in  his  own  name  upon  the  sheriff's 
bond.^  The  principle  may  be  stated  more  broadly.  The  assignee 
of  any  claim  or  demand  maj',  in  general,  sue  in  his  own  name  upon 
any  incidental  or  collateral  security  connected  with  the  demand, 
and  by  means  of  which  its  payment  or  satisfaction  can  be  en- 
forced. Thus,  the  assignee  of  a  judgment  obtained  in  a  garnishee 
process  may  maintain  an  action  in  his  own  name  against  the 
garnishees  ;  ^  the  assignee  of  the  cause  of  action  in  a  j3ending 
litigation  may  sue  on  an  appeal  bond  given  to  the  plaintiff  [the 
assignor]  in  the  course  of  the  proceedings.*^  The  assignee  of  a 
reversion  and  also  of  the  covenants  contained  in  the  lease  is  the 
proper  party  to  bring  an  action  to  recover  damages  arising  from 
a  breach  of  such  covenants.^     When  a  surviving  jjartner  assigns 

1  Petersen  v.  Cliemical  Bank,  32  N.  Y.  tlie  kgul  as  well  as  the  equitable  rights  of 

21.     The   decision   turned   largely   upon  the  original  creditor." 
the  law  as  to  foreign  administrators  and  -  McBride  v.  Parmers  Bank,  2G  N.  Y. 

successions.  In  reference  to  the  questions  450,  457. 

now   under  consideration,  Denio  J.   said  ^  Bowdoin  v.  Coleman,  3  Abb.  Pr.  431. 

(p.  45) :  "The  law  of  maintenance  pro-  *  Charles  r.  Haskins,  11  Iowa,  329. 

hibited  the  transfer  of  the  lejial  property  ^  Whitman  v.   Keitii,  1  Ohio  St.  134. 

in  a  chose  in  aclion  so  as  to  give  the  as-  In   this  case,   Mr.  Justice  Scott  gives  a 

signee  a  right  of  action  in  Ids  own  name,  very  full  and  clear  exposition  of  the  stat- 

But  this  is  now  abrogated  ;  and  such  a  utory  provision  under  consideration, 
demand  as  that  asserted  again.<t  the  de-  "^  Bennett  v.  McGrade,  15  Minn.  132. 

fendant  in  this  suit  may  be  sold  and  con-  "  Masury  v.   Southwortii,  U  Ohio   St. 

veyed  so  as  to  vest  in  the  purchaser  all  340.      Gholson  J.,  after  stating  that  the 


THE   REAL   PARTY   IN   INTEREST   TO    BE    THE    PLAINTIFF.         163 

things  in  action  which  belonged  to  the  firm,  the  assignee  succeeds 
to  his  rights,  and  must  sue  in  his  own  name  to  collect  the  same.^ 
§  135.  In  Kentucky,  if  the  assignment  is  equitable,  which  is 
defined  to  be  an  assignment  not  expressly  authorized  by  statute 
to  be  made,  although  the  assignee  must  sue  in  his  own  name,  the 
assignor  must  also  be  joined  as  a  party  plaintiff  or  defendant ;  ^ 
as,  for  example,  when  an  execution  is  assigned,^  or  a  lease.*     In 
certain  States,  where  the  thing  in  action  is  not  negotiable,  or 
assignable  by  indorsement,  the  assignor  maj^  be  joined  as  a  de- 
fendant to  answer  to  his  interest  and  to  the  assignment.'^     In 
other  States,  however,  where  similar  provisions  are  not  found  in 
the  codes  or  practice  acts,  the  rule  is  entirely  different,  and  the 
assignor  is  not  a  proper  party  either  plaintiff  or  defendant.     Thus, 
in  Ohio,  an  assignor  having  been  made  a  defendant  under  the 
general  provisions  of  the  code  relating  to  the  joinder  of  parties 
plaintiff  and  defendant,  it  was  held  that  he  neither  had  an  inter- 
est in    the  controversy  adverse  to  the  plaintiff,  nor  was   he  a 
necessary  party  to  a  complete  determination  or  settlement  of  the 
questions  involved  therein,  and  therefore  he  had  been  improperly 
made  a  defendant.^      This  is   undoubtedly  the  rule  in  all  the 
States  whose  codes  do  not  contain  the  special  provision  permitting 
or  requiring  the  joinder  of  assignors  in  order  to  answer  to  the 
assignment.     And   even  though  he  may  retain  some  residuary, 
contingent,  or  equitable  interest,  the  assignor  is  not  the  proper 
party  to  sue  ;  tlie  legal  title  is  not  only  in  the  assignee,  but  he  is 
entitled  to  receive  all  the  proceeds  of  the  recovery,  and  whatever 
possibilities  the  assignor  may  have,  he  is  not  the  real  party  in 
interest.'' 

statute  of  32  Henry  VIII.  c.  34,  allowing  3  Watson  v.  Gabby,   18  B.  INIon.  658, 

the  assignee  of  tlie  reversion  to  sue  on  665. 

covenants  running  with  the  reversion,  had  ^  Hicks  i;.  Doty,  4  Bush,  420.     By  1 

not    been     enacted    in    Ohio,    proceeds  R-  S.  ch.  22,  §  6,  "all  bonds,    bills,    or 

(p.  346)  :  "Our  code  of  civil  procedure  "otes  for  money  or  property  shall  be  as- 

operates  on  the  remedy  even  more  exten-  signable  so  as  to  vest  the  right  of  action 

sively  than  the  statute  of  32  H.  VIII.  c.  34.  in  the  assignee." 

For  whether  the  covenant  be  collateral  or  ^  Code  of  Indiana,  §  6. 

inhere  in  the  land,  if  it  be  assigned,  the  *"  Allen  v.  Miller,  11  Ohio  St.  374. 

assignee  not  only  may,  but  must,  sue  in  "'  Smith  v.  Chicago  &  N.   W.    R.   R., 

his  own  name."  23  Wise.  267,  where  it  appeared  that  in 

i  Roys  V.  Vilas,  18  Wise.  169.  proceedings  supplementary  to  execution, 

2  Dean  v.   English,  18  B.  Mon.  132;  before  instituted   against  the  plaintiff  in 

Gill   u.  Johnson,   1  Mete.  649;  Lytle  v.  another  State,  the  demand   in  suit  had 

Lytle,  2  Mete.  127.  been  assigned  to  a  receiver;  this  was  held 

a  complete  defence. 


164  CIVIL    REMEDIES. 

§  136.  The  thing  in  action  may  even  be  assigned  wliile  a  suit 
upon  it  is  pending,  and,  Ly  the  express  provisions  of  the  statute, 
the  assignee  nia}'  either  be  substituted  as  plaintiff,  or  the  suit 
may  be  carried  on  to  its  termination  in  the  name  of  the  original 
party.  Such  substitution,  when  made,  is  not  the  bringing  of  a 
new  action,  and  does  not  require  a  supplemental  complaint.  If 
an  assignee  carries  on  a  suit  in  the  name  of  the  assignor,  he  must 
show  affirmatively  that  the  transfer  was  ma.de  pendente  lite} 

§  187.  It  has  been  decided  in  some  cases  that  the  assignment 
of  part  of  an  entire  claim  does  not  enable  the  assignee  to  sue  in 
his  own  name,  but  that  the  assignor  must  still  sue  for  the  whole  de- 
mand.^ This  rule  is  based  upon  the  old  doctrine  of  the  indivisi- 
bility in  law  of  an  entire  thing  in  action.  Other  cases  hold  that 
such  an  assignment  conve3's  an  equitable  interest,  and  makes  the 
assignee  an  equitable  owner,  so  that  he  may  sustain  an  action 
brought  in  his  own  name,  although  the  assignors  may,  upon  their 
own  application,  be  allowed  to  intervene,  in  order  to  protect  their 
interests.'^  The  grantee  of  land  cannot  sue  in  his  own  name  to 
recover  damages  for  the  breach  of  covenants  in  the  deed  to  his 
grantor  which  do  not  run  with  the  land,  unless  the  covenants 
themselves  have  also  been  assigned,  but  the  grantor  is  the  proper 
party  :  as,  for  example,  the  grantee  cannot  sue  upon  a  covenant 
of  seisin  in  the  deed  to  his  grantor,  in  those  States  where  that 
covenant  is  regarded  as  broken  immediately,  if  at  all.  upon  the 
execution  of  the  deed,  and  as  not  running  with  the  land."^ 

§  138.  It  is  no  longer,  consistently  with  the  provisions  of  the 
codes,  possible  for  one  person  to  sue  "  to  the  use  of"  another,  as 
was  common  in  some  States.  The  parties  beneficially  interested 
must  themselves  bring  the  action.'^  There  are  cases  ^^  hich  hold 
that  when  there  is  a  trustee  of  an  express  trust,  Tie  must  bring 
the  action,  and  that  the  benefici.ary  can  in  no  such  case  sue  in  his 

1  St.  Anthony  Mill  Co.  r  Vandall,  1  case,  the  court  held  that  the  grantee  might 
Minn.  246  ;  Virgin  v.  Brubaker,  4  Nev.  sue,  because  he  was  tiie  rtal  owner  of  the 
31 ;  Warner  v.  Turner,  18  B.  Mon.  758.  land,    even    when   in   tiie   hands   of    his 

2  Cable  c.  St.  Louis  Marine  Railway  grantor;  but  tlie  general  doctrine  of  the 
Co.,  21  Mo.   133  ,  Leese  v.  Siicrwood,  21  text  was  affirmed. 

Cal.  151.     See   Lapping  r.  Dufly,  47  Ind.  °  Weise  r.  Gerner,  42  Mo.  527  ;  Hutch- 

56;  Boylei'.  Kobbins,  71N.  C.  130.  ings   v.    Weems,  35  Mo.  285;   Brady   v. 

»  Grain  r.  Aldrich,  38  Cal.  514;  Wig-  Chandler,   31    Mo.    28;    Van    Doren   v. 

gins  V.  McDonald,  18  Cal.  126.  Relfe,  20  Mo.  455;  Wilkes  v.  Morehead, 

4  Hall    V.   Plaine,   14   Ohio    St.    417.  Stanton's  Code  (Ky.),  p.  31  (n.) ;  Lytle  f. 

Under  the  peculiar  circumstances  of  this  Lytle,  2  Mete.  127,  128. 


THE   REAL   PARTY   IN   INTEREST   TO    BE    THE   PLAINTIFF.  165 

own  name,  at  least  alone. ^  The  correctness  of  this  ruling  may 
well  be  doubted.  The  section  relative  to  the  real  party  in  inter- 
est is,  in  all  the  codes,  imperative  ;  while  that  in  relation  to  the 
trustee  of  an  express  trust  is  permissive. 

§  189.  The  cases  thus  far  considered  in  this  section  are  all  con- 
nected with  the  assignment  of  a  thing  in  action  by  the  original 
creditor,  and  they  involve  the  question,  When  may  the  assignee, 
under  such  circumstances,  be  the  party  pUiintiff  in  an  action  to 
enforce  the  assigned  demand  ?  The  rule  of  the  statute,  that 
every  action  must  be  brought  in  the  name  of  the  real  party  in 
interest,  applies  also  to  numerous  cases  which  have  no  connection 
whatever  with  assignments  and  assignees ;  and  I  propose,  in  the 
remainder  of  this  section,  to  review  and  examine  these  other 
illustrations  of  the  principle.  It  is  now  the  settled  doctrine  in  so 
many  of  the  States,  that  it  may  be  called  the  American  doctrine,  — 
although  the  contrary  rule  has  been  established  in  England  and 
in  some  States,  and  notably  in  Massachusetts,  where  it  has  been 
very  recently  reaffirmed  with  emphasis,  —  that,  where  an  express 
promise  is  made  by  A.  to  B.,  upon  a  consideration  moving  from 
B.,  whereby  the  promisor  engages  to  do  something  for  the  bene- 
fit of  C,  as,  for  example,  to  pay  him  a  sum  of  money,  although 
C.  is  both  a  stranger  to  the  consideration  and  not  an  immediate 
party  to  the  contract,  yet  he  may  maintain  an  action  upon  the 
promise  in  his  own  name  against  the  promisor,  without  in  any 
manner  joining  as  a  party  the  one  to  whom  the  promise  was  di- 
rectly made.^  This  rule  was  originally  adopted  prior  to  the  re- 
formed procedure,  and  was  based  partly  upon  considerations  of 
convenience,  and  partly  upon  a  liberal  construction  of  the  nature 
of  the  contract.  The  provision  of  the  codes  under  review  places 
the  matter  beyond  all  doubt ;  for  the  person  for  whose  benefit  the 

1  Reed  w.  Harris,  7  Robt.  151.     A  Spe-  Mo.   589,   590;    51    Mo.   466;    Myer    v. 

cial  Terra  decision,  and    not  entitled   to  Lowell,  44  Mo.  328 ;  Coster  v.  Mayor  of 

much   weight.      See   Western   R.    K.   v.  Albany.  43  N.  Y.  399,  411 :  Van  Scliaick 

Nolan,  48  N.  Y.  513.  v.  Tliird  Avenue  R.  R.,   38  N.   Y.   346 ; 

-  Kimball  v.  Noyes,  17  Wise.  695;  Ricard  y.  Sanderson,  41  N.  Y.  179;  Bar- 
Sanders  V.  Clason,  13  Minn.  379;  Meyer  ker  r.  Bradley,  42  N.  Y.  316,  319;  Secor 
V.  Lowell,  44  Mo.  328  ;  Cross  v.  Truesdale,  v.  Lord,  3  Keyes,  525  ;  Claflin  v.  Ostrom,  54 
28  Ind.  44  ;  Devol  v.  Mcintosh,  23  Ind.  N.  Y.  581,  584 ;  Cooley  v.  Howe  Machine 
629  ;  Day  v.  Patterson,  18  Ind.  114  ;  Rice  Co.,  53  N.  Y.  620  ;  Glen  v.  Hope  Mut.  Life 
V.  Savery,  22  L)wa,  470;  Scott  v.  Gill,  19  Ins.  Co.,  56  N.  Y.  379,  381;  Barlow  v. 
Iowa,  187  ;  Allen  v.  Thomas,  3  Mete.  (Ky.)  Meyers,  6  N.  Y.  Sup.  Ct.  183  ;  Johnson  v. 
198 ;  Wiggins  v.  McDonald,  18  Cal.  126 ;  Knapp,  36  Iowa,  616 ;  Jordan  v.  White, 
Miller  &  Co.  v.  Florer,  15  Ohio  St.  148,  20  Minn.  91. 
151,  per  White  J.     Rogers  v.  Gosnell,  58 


166  CIVIL   REMEDIES. 

promise  is  thus  made  is  certainly  the  real  party  in  interest.  The 
following  are  some  examples  and  illustrations  of  this  rule  :  Where 
a  partnership  assign  their  assets,  and,  in  consideration  thereof, 
the  purchaser  agrees  with  the  members  to  pay  all  their  firm- 
debts,  any  creditor  of  the  partnership  may  sue  him  upon  this  un- 
dertaking, and  recover  the  amount  of  the  indebtedness  due  to  the 
plaintiff  thus  suing,^  and  may  even  sue  him  and  the  sureties 
who  united  with  him  in  his  undertaking  to  the  assigning  parties  ;2 
and  where  many  subscribers  contributed  different  sums  of  money 
to  the  defendant  for  a  specified  purpose,  and  he  entered  into  a 
written  contract  with  three  persons,  whereby,  among  other  things, 
he  promised  to  repay  the  sums  so  loaned,  it  was  held  that  any 
subscriber  might  sue  on  the  agreement  to  recover  the  amount 
which  he  advanced  ;  ^  and  where  A.  placed  a  sum  of  money  in  the 
hands  of  B.,  which  the  latter  promised  to  pay  over  to  C,  C. 
may  prosecute  an  action  against  B.  on  his  promise.^  Where  the 
defendant  was  indebted  to  A.,  who  was  in  turn  indebted  to  B.  in 
a  less  amount,  and  the  two  former  parties  agreed  that  defendant 
should  pay  to  B.  the  amount  of  the  latter's  demand,  which  should 
he  jjvo  tanto  a  payment  on  his  own  debt  to  A.,  B.  was  permitted 
to  recover  on  this  j^i'omise.'^  If  in  a  policy  of  insurance  it  is 
stipulated  that  the  loss,  if  any,  shall  be  paid  to  a  person  named 
not  the  assured,  such  person  may  sue  in  his  own  name  on  the 
policy.*^  B.  sold  and  delivered  goods  to  A.,  and  in  consideration 
thereof  A.  promised  to  pay  a  certain  sum  to  C,  which  was  in  fact 
the  amount  of  a  debt  due  from  B.  to  C. ;  it  was  held  that  C.  could 
recover  upon  the  promise  so  made  by  A.  in  his  behalf."  Perhaps 
the  most  striking  illustration  of  this  doctrine,  and  of  the  extent 
to  which  it  has  been  carried,  is  found  in  a  class  of  cases  where, 
upon  a  conveyance  of  land,  the  grantee  assumes  and  promises  to 
pay  a  debt  which  is  secured  by  mortgage  on  the  land  so  conveyed. 
If  the  grantee  of  land  incumbered  by  a  mortgage  assumes  the 
mortgage  debt  by  a  clause  in  his  deed,  and  promises  to  pay  the 
same,  the  creditor-mortgagee  may  maintain  an  action  against  this 

^  Sanders  v.   Clason,   13  Minn.   379;  Dillon   J.   speaks    of   the    rule   as    well 

Meyer  i'.  Lowell,  44  Mo.  328,  and  cases  settled. 

cited ;  Barlow  v.  Meyers,  6  N.  Y.  Sup.  Ct.         *  Allen  v.  Thomas,  3  Mete.  (Ky.)  198. 
183.  5  Wiggins  v.  McDonald,  18  Cal.  126. 

2  Kimhall  v.  Noyes,  17  Wise.  695 ;  «  Cone  v.  Niagara  Fire  Ins.  Co.,  3  N. 
Devol  V.  Mcintosh,  23  Ind.  529 ;  Claflin  Y.  Sup.  Ct.  33,  39  ;  Newman  v.  Spring- 
V.  Ostrom,  54  N.  Y.  581,  .584.  field  Ins.  Co.,  17  Minn.  123,  126. 

3  Eice  V.  Savery,  22  Iowa,  470,  477.         ^  Hall  v.  Roberts,  61  Barb.  33. 


THE   EEAL   PARTY   IN   INTEREST   TO    BE   THE   PLAINTIFF.  167 

grantee  upon  the  bond  or  other  evidence  of  the  indebtedness, 
and  recover  the  amount  thereof,  and  is  not  restricted  to  the 
remed}'^  by  foreclosure  of  the  mortgage  ;  ^  and  the  creditor  may 
thus  sue  the  grantee  upon  the  bond,  even  though  that  instrument 
had  expressly  provided  that  the  mortgagee  should  first  have  re- 
course on  the  land,  and  the  obligor  should  only  be  liable  for  the 
deficiency  which  might  arise  after  the  foreclosure  ;  this  stipula- 
tion, it  was  held,  protected  the  obligor  personally,  and  could  not 
be  taken  advantage  of  by  the  grantee  who  had  promised  to  pay 
the  debt.^  The  result  of  these  and  other  decisions  is,  that  the 
third  person,  for  whose  benefit  an  undertaking  is  entered  into  be- 
tween other  parties,  may  sue  upon  it,  although  such  undertaking 
is  an  instrument  in  writing  and  under  seal.^  This  doctrine  is 
plainly  a  departure  from  the  technical  notions  of  the  common 
law,  which  did  not  permit  a  person  to  sue  upon  a  contract  un- 
less he  was  a  party  to  it,  or  unless  the  consideration  moved  from 
him,  and  which  especially  forbade  an  action  upon  a  sealed  under- 
taking by  a  stranger.  The  courts  of  some  States  adhere  strictly 
to  this  old  notion,  and  utterly  repudiate  the  innovation.*  The 
new  rule,  however,  is  as  convenient  as  it^s  just.  The  objections 
to  it  are  every  way  technical  and  arbitrary,  —  a  repetition  of  verbal 
formulas  without  any  convincing  reasons.  It  certainly  avoids  a 
circuity  of  actions,  and  it  enables  the  only  person  beneficially  in- 
terested in  the  promise  —  the  real  party  in  interest  —  to  come 
into  court  in  the  first  instance  and  establish  his  rights,  Avithout 
being  driven  to  enforce  them  in  a  roundabout  manner  through 
the  intervention  of  a  third  person,  who,  if  successful,  must  ac- 
count to  him  for  the  proceeds  of  the  litigation.  The  true  extent 
and  application  of  the  doctrine,  and  the  proper  limitations  upon 
it,  have  been  discussed  and  fixed  by  the  New  York  Court  of 
Appeals  in  very  recent  cases. ^ 

1  Lawrence  y.  Fox,  20  N.Y.  268;  Burr  Keyes,  525 ;   Claflin  v.  Ostrom,  54  N.  Y. 
V.  Beers,  24  N.  Y.  178.  581,  584 ;  Glen  v.  Hope  Ins.  Co.,  56  N.  Y. 

2  Thorp  V.  Keokuk  Coal  Co.,  48  N.  Y.  379,  381 ;  McDowell  v.  Laev,  35  Wise.  171. 
253.  *  Exchange  Bank  v.  llice,  107  Mass. 

^  Coster  V.  Mayor  of  Albany,  43  N.  Y.  37,  per  Gray  J. 
399,  411  ;  Van  Schaick  v.  Third  Avenue         ^  Garnsey  v.  Rogers,  47  N.  Y.  233,  240, 

R.  R.,  38  N.  Y.  346  ;  Ricard  v.  Sanderson,  per  Rapallo  J. ;  Merrill  v.  Green,  55  N.  Y. 

41  N.  Y.  179;  Lawrence  v.  Fox,  20  N.  Y.  270,   273;  Turk  v.  Ridge,   41  X.  Y.  201, 

268 ;  Burr  v.  Beers,  24  N.  Y.  178  ;  Thorp  206.     See  also  Hinman  v.  Bowen,  5  N.  Y. 

V.  Keokuk  Coal  Co.,  48  N.  Y.  253  ;  Kim-  Sup.  Ct.  234,  wliich  holds  that  a  defence, 

ball   V.   Noyes,    17   Wise.  695;  Devol  v.  good  as  against  the  immediate  promisee, 

Mcintosh,  23  Ind.  529;   Barker  v.  Brad-  is  also  available  against  the  beneficiary, 

ley,  42  N.  Y.  316,  319  ;  Secor  v.  Lord,  3  Phillips  v.  Van  Schaick,  37  Iowa,  229. 


168  CIVIL    REMEDIES, 

§  140.  Upon  the  same  principle,  the  equitable  owner  of  a 
promissory  note  is  the  real  party  in  interest  within  the  statute, 
and  is  the  proper  person  to  sue  upon  it,  although  there  may  be  no 
indorsement ;  and  possession  of  the  instrument  is  prima  facie 
evidence  of  such  ownership.^  In  fact,  wherever  the  spirit  of  the 
reformed  sj^stem  is  carried  out,  —  and  this  is  now  very  generally, 
if  not  universally,  the  case,  —  the  equity  rule  as  to  parties  is 
freely  applied  to  all  legal  actions,  and  this  one  principle  will 
easily  solve  all  particular  cases  of  difficulty  or  doubt.'-^  But,  as 
has  been  shown  in  preceding  paragraphs,  the  law  as  to  com- 
mercial paper  has  not  been  changed  in  several  of  the  States  by 
this  provision  of  the  statute  in  reference  to  the  parties  plaintiff; 
and  in  those  States,  therefore,  the  indorsee,  and,  a  fortiori,  the 
payee  of  a  negotiable  note  or  bill  may  maintain  an  action  upon 
it,  even  though  there  may  be  relations  between  himself  and  third 
persons  which  give  them  a  right  of  action  over  against  him  for 
the  proceeds.  As,  for  example,  if  A.,  having  in  his  hands  money 
belonging  to  B.,  should  loan  it,  and  take  a  note  from  the  borrower 
payable  to  himself,  he  could  sue  upon  it ;  however  much  B.  might 
have  been  interested  in  the  original  money,  and  however  valid  a 
demand  he  ma}^  have  against  A.,  he  is  not  a  party  to  the  note,  nor 
the  holder  of  it.'^  In  the  class  of  cases  already  mentioned,  where 
an  express  contract  is  made  with  one  for  the  benefit  of  another, 
and  the  person  thus  beneficially  interested  is  permitted  to  sue  in 
his  own  name,  the  one  to  whom  the  promise  was  expressly  given 
may,  in  general,  also  maintain  an  action.  The  promise  being 
actually  made  to  him,  and  the  consideration  moving  from  him,  he 

1  Garner  v.  Cook,  30  Ind.  331 ;  Comp-  question  is  determined,  not  so  much  by  tlie 
ton  V.  Davidson,  31  Ind.  62.  In  the  latter  evidence  showing  the  interest,  as  by  the 
case,  tlie  answer  denied  that  tlie  plaintiff  fact  that  he  is  the  real  party  in  interest, 
was  "  the  lepal  owner  of  tiie  note  in  suit."  and  has  for  Ids  cause  of  action  a  subject- 
This  was  held  no  defence,  as  it  was  suffi-  matter  of  which  the  law  will  take  cogni- 
cient  if  he  was  tiie  equliable  owner.  zance.     In  other  words,  the  equitj-  rule  38 

2  Conyngham  v.  Smith,  16  Iowa,  471  ;  to  parties  is  now  applied  to  law  actions,  if 
Tate  V.  Ohio,  &c.  R.  R.,  10  Ind.  174;  the  relief  asked  may  be  given  in  that 
Swift  r.  Ellsworth,  10  Ind.  205.  In  the  court.  And  therefore,  if  the  plaintiff  is 
first  of  these  cases,  Wright  C.  J.,  describ-  the  real  owner  of  this  bond,  if  it  lias  been 
ing  the  effect  of  the  Code  of  Procedure,  actually  sold  and  transferred  to  him  by  a 
said  (p.  475) :  "  If  the  cause  of  action  is  valid  verbal  contract,  there  is  no  reason 
cognizable  at  law,  the  party  having  the  wliy,  under  our  system  of  pleading  and 
real  interest  therein  is  to  be  heard  in  that  practice,  he  may  not  maintain  his  action 
form,  if  equitable,  in  equity.  His  pro-  in  manner  and  form  as  stated  in  his  peti- 
ceeding,  in  other  words,  is  to  be  'ordi-  tion." 

nary '   or   '  equitable,'   according  to   tiie  ^  Robbins  v.  Cheek,  32  Ind.  328  ;  Rob- 

nature  of  the  cause  of  action.     And  the    bins  v.  Dislion,  19  Ind.  204. 


THE    REAL    PARTY    IN    INTEREST   TO    BE    THE    PLAINTIFF.  169 

is  legally  the  contracting  part}^  and  is  clothed  with  the  legal 
right ;  indeed,  he  falls  nnder  the  definition  of  trustee  of  an  ex- 
press trust  given  in  another  section  of  the  codes. ^ 

§  141.  The  following  are  additional  examples  of  actions  main- 
tained by  the  real  party  in  interest,  and  in  which  the  equity 
doctrine  on  this  subject  has  been  freely  applied,  although  the 
rights  to  be  protected  and  the  remedies  to  be  obtained  were  legal. 
After  a  judgment  had  been  obtained  in  an  action  of  ejectment 
prosecuted  according  to  the  old  form  by  John  Doe  as  the  fictitious 
plaintiff,  the  succeeding  action  to  recover  the  mesne  profits  of 
the  land  should  be  brought  in  the  name  of  the  actual  owner  of 
the  fee,  —  the  lessors  of  the  plaintiff  in  the  ejectment,  —  they  being 
the  real  parties  in  interest.^  An  undertaking  given  to  the  sheriff 
by  the  defendant  in  an  action  for  the  recovery  of  chattels,  in 
order  to  procure  a  return  of  the  goods,  should  be  prosecuted  by 
the  plaintiff  in  that  action,  since  he  is  the  real  party  in  interest;^ 
and  it  is  said  to  be  a  general  rule  in  Iowa  that  when  a  bond  or 
undertaking  is  given  to  an  officer,  in  the  course  of  some  judicial 
proceeding,  for  the  security  of  any  particular  person,  such  person 
may  sue  upon  it  in  his  own  name  without  the  formality  of  an 
assignment.*  If  a  levy  by  virtue  of  an  execution  is  made  upon 
chattels  by  a  deputy  sheriff,  and  the  goods  are  wrongfully  taken 
from  his  possession,  an  action  against  the  wa-ong-doer  should  be 
brought  by  the  sheriff;  he  is  the  real  party  in  interest,  since  the 
cleput}^  sheriff  acted  simply  as  his  agent.^  An  injunction  bond 
having  been  given  to  two  obligees,  defendants  in  the  action,  one 
of  them  only  was  injuriously  affected  by  the  injunction  and  suf- 
fered any  damage  therefrom  ;  he  alone,  it  was  held,  could  main- 
tain an  action  on  the  undertaking,  as  he  was  the  only  party  in 
interest,  and  a  suit  in  the  names  of  both  united  as  plaintiffs  was 


1  See  Rice  v.  Savery,  22  Iowa,  470,  cuted."     This  subject  is  treated  at  large 

477  ;  Cottle  v.  Cole,  20  Iowa,  481,  485.     In  in  a  subsequent  section, 
the  former  of  these  cases,  Dillon  J.  said  :  ^  Masterton  v.  Hagan,  17  B.  Mon.  325. 

"  If  the  promise  is  made  for  the  benefit  of  It  must  be  understood  that  the  new  sys- 

another,  who  is  the  real  party  in  interest,  tem  had  gone  into  effect  after  the  com- 

the  latter  may  sue,  though  the  contract  menceraent  of   the  ejectment,  and  before 

was   made    to    an    agent  or  trustee ;    or  that  of  the  second  action  for  mesne  prof- 

the  agent  or  trustee,  or  person  in  whose  its. 

name  a  contract  is  made  for  the  benefit  of  ^  McBeth  v.  Van  Sickle,  6  Nev.  134. 

another,   may   sue   without   joining    the  "*  Moorman  v.  Collier,  32  Iowa,  138. 

party  for  whose  benefit  the  suit  is  prose-  ^  Terwilliger  v.  Wheeler,  35  Barb.  620. 


170  CIVIL   REMEDIES. 

declared  to  l.)e  impropeily  l)r()UL;lit  under  the  code.^  A  plaintiff 
in  a  pending  suit  having  moved  for  the  appointment  of  a  receiver, 
the  application  was  denied  on  condition  that  the  defendant  give 
a  bond  or  undertakino-  to  account  himself  as  though  he  were  a 
receiver  for  all  assets  which  might  come  into  his  hands,  and  in 
pnirsuance  of  tliis  order  he  gave  a  bond  in  form  running  to  the 
State  ;  the  plaintiff  having  recovered  judgment,  and  the  defendant 
failing  to  account,  the  action  on  the  undertaking  was  properly 
brought  at  once  by  the  plaintiff  in  his  own  name,  without  any 
assignment  to  him  by  the  State. ^  A  person  in  whose  name  a 
business  was  secretly  carried  on  by  the  defendant  and  others 
in  order  to  conceal  their  property  and  interest  from  their  cred- 
itors, was  permitted  to  recover  the  value  of  assets  received  in  the 
course  of  the  business,  which  had  been  taken  by  the  defendant 
and  converted  to  his  own  use.^  Where  several  persons  were 
owners  of  a  chattel,  but  for  purposes  of  convenience  the  title 
stood  in  the  name  of  one  of  them  alone,  and  he  executed  a  bill  of 
sale  of  it  in  his  own  name  to  a  purchaser  who  supposed  that  his 
immediate  vendor  was  solely  interested,  it  was  held  that  all  the 
owners  might  join  as  plaintiffs  to  recover  the  price  ;  they  were 
the  real  parties  in  interest  under  the  provision  of  the  code.^ 
This  case  is  a  particular  instance  of  a  general  rule.  It  is  now 
settled  that  when  a  simple  contract,  whether  verbal  or  written,  is 
entered  into  by  an  agent  in  his  own  name,  but  really  acting  on 
behalf  of  an  undisclosed  principal,  and  the  fact  of  the  agency  is 
unknown  at  the  time,  but  the  parties  suppose  that  they  are  deal- 
ing with  him  on  his  own  individual  account,  the  principal  may 
bring  an  action  and  recover  upon  it  as  though  he  had  been  the 
party  expressly  contracting.^  In  these  cases,  however,  the  agent 
may  also  bring   the   action  ;    he   being   one   of  the  contracting 

1  Summers  v.  Farisb,  10  Cal.  347.  tered  into  fraudulent  arrangements,  and, 

2  Baker  v.  Bartol,  7  Cal.  551.  falling  into  disputes   among  tliemselves, 

3  Paddon    v.   Williams,    2    Abb.    Pr.  apply  to  the  court  for  help,  shall  be  left 
N.  s.  88.     The    plaintiff    certainly    had  in  stain  quo. 

the  legal  title,  and  the  court  seemed  to  *  Silliman  v.  Tattle,  45  Barb.  171. 

think  that  it  should  prevail  over  an  alleged  ^  St.  John  v.  Griffith,  2  Abb.  Pr.  198; 

equitable  title  that  was  based  upon  fraud.  Hall  v.  Plaine,  14  Ohio  St.  417  ;  Higgins 

But  as  the  plaintiff  was  a'so  a  participant  v.  Senior,  8  M.  &  W.  834;  Sims  v.  Bond, 

in  the  fraud,  it  is  difficult  to  perceive  why  5  B.  &  Ad.   389,   393,  per  Ld.  Denman  ; 

the  court  should  interfere  and  aid  him  Bastable  v.  Poole,  1  C,  M.  &  P.  410,  per 

against  the  one  in  possession.     It  is  the  Parke  B. ;  Hicks  c  Whitmore,  12  Wend, 

general  rule  that  persons  who  have  en-  548 ;  Taintor  v.  Prendergast,  3  Hill,  72. 


ACTIONS    BY   TAX-PAYERS.  171 

parties,  the  agreement  being  in  express  terms  made  with  him,  he 
is  a  proper  party  to  enforce  its  observance  ;  ^  the  agent  may  also 
sue,  even  where  the  principal  Avas  disclosed,  and  it  was  shown 
that  he  was  acting  in  behalf  of  such  principal,  if  the  contract  is 
of  such  a  form  that  the  promise  is  in  express  terms  made  to  the 
agent  himself.^  Where  the  promise  in  favor  of  a  principal  is 
implied,  the  agent  cannot  in  general  sue  upon  it  in  his  own  name, 
but  the  action  must  be  brought  by  the  principal  himself.  Thus, 
where  a  person  making  a  bet  in  his  own  name  deposited  83,000, 
the  amount  thereof,  with  the  stakeholder,  but  of  this  sum  only 
$600  was  his  own  money,  and  the  rest  had  been  furnished  by 
other  parties  —  not  as  a  loan  —  who  united  with  him  in  the 
wager,  and  he  brought  an  action  under  the  statute  against  the 
stakeholder  to  recover  back  the  whole  amount  of  the  money  so 
deposited  by  him,  it  was  held  by  the  New  York  Court  of  Appeals 
that  he  could  only  recover  the  $600  which  he  had  actually  fur- 
nished of  his  own  funds ;  that  he  was  simply  an  agent  for  the 
owners  of  the  remaining  portion  of  the  moneys  advanced,  and 
the  implied  promise  to  refund  arose  in  their  favor  alone  ;  and 
they  must  therefore  sue  in  their  own  names  to  recover  their 
respective  shares.^ 

§  142.  It  is  the  established  doctrine  in  several  States,  and  by 
many  cases,  that  an  action  cannot  be  maintained  by  a  private 
person,  citizen,  freeholder,  or  tax-payer,  either  suing  alone  or  on 
behalf  of  all  others  similarly  situated,  to  restrain  or  remove  or 
redress  any  public  wrong,  or  nuisance,  or  unlawful  act  done 
under  color  of  legal  authority  by  tlie  officers  of  a  county,  town, 
city,  or  other  municipality,  unless  the  plaintiff  has  suffered  some 
special  wrong,  unless  some  particular  injury  is  done  to  him  which 
is  not  sustained  by  all  others  in  the  community  alike.  As  a 
result  of  this  rule,  no  citizen  or  tax-payer  or  freeholder  can 
prosecute  an  action  to  restrain  official  acts  which  would  create  a 

1  See  cases  cited  in  last  note.     Tyler  with  himself  by  name."     In  this  case,  the 

V.  Freeman,  3  Cush.  261.  right  of  action,  it  was  held,  rested  upon 

'^  Cases  cited  in  last  notes.     Fear   v.  the' defendant's  implied  duty  of  restoring 

Jones,  6  Iowa,  169  ;  Usparicha  v.  Noble,  the  money.     "  But  this  implied  duty  or 

13    Fiast.   232 ;    Buffum    v.    Chadwick,   8  assumpsit  arises  only  in  favor  of  those  to 

Mass.  103 ;  Fairfield  v.  Adams,  16  Pick,  whom  the  money  in  fact  belonged,  and 

381.  therefore  cannot  be  enforced  in  the  name 

•''  Ruckman  v.  Pitclier,  20  N.  Y.  9.  The  of  another  person  to  whom  the  obligation 

court  say  :   "  An   agent  may,   in   many  is  in  no  sense  due." 
cases,  sue  upon  express  contracts  made 


172 


CIVIL   REMEDIES. 


imuiicipal  indebtedness  ;  or  to  set  aside  and  annul  such  public 
acts  when  done,  although  the  indebtedness  must  some  time  be 
paid  by  means  of  increased  taxation,  and  the  plaintiffs  prop- 
erty would  be  liable  for  his  proportionate  share  of  the  tax  when 
levied.^  On  the  other  hand,  actions  of  the  nature  and  for  the 
purposes  described  brought  by  a  citizen,  tax-payer,  or  freeholder, 
are  permitted  in  many  and  perhaps  in  a  majority  of  the  States, 
and  are  common  forms  of  judicial  proceeding  to  restrain  the 
abuse  of  local  legislative  and  administrative  power  by  municipal 
officials.  Among  these  remedial  processes  are  actions  by  a 
citizen,  tax-payer,  or  freeholder,  to  restrain  or  set  aside  tax  pro- 
ceedings, the  levying  of  assessments  for  local  improvements,  the 
issue  of  bonds  by  municipal  corporations  in  aid.  of  railways,  and 
similar  acts  of  a  public  or  quasi  public  nature.^     On  the  other 


I  Doolittle  V.  Supervisors  of  Broome 
Co.,  18  N.  Y.  155 ;  Roosevelt  v.  Draper, 
23  N.  Y.  318;  People  v.  Mayor,  32  Barb. 
102 ;  Sargent  v.  Ohio  and  Miss.  M.  R.,  1 
Handy,  52  ;  Carpenter  v.  Mann,  17  Wise. 
155;  Kittle  v.  Fremont,  ,1  Neb..  329; 
Craft  V.  Commissioners,  &c.,  5  Ivans.  518; 
Kirkpatrick  v.  State,  5  Kans.  673;  Tift 
V.  City  of  Butfalo,  1  N.  Y.  Sup.  Ct.  150  ; 
Comins  v.  Supervisors,  3  ib.  296;  Ayres 
V.  Lawrence,  63  Barb.  454 

-  Rice  V.  Smith,  9  Iowa,  570  ;  State  v. 
Bailey,  7  ib.  3^0  ;  State  v.  Co.  Judge,  7  ib. 
186;  Litchfield  v.  Polk  Co.,  18  ib.  70; 
Olmstead  v.  Supervisors,  24  ib.  33 ;  Wil- 
liams V.  Peinny,  25  ib.  436  ;  Stokes  v. 
Scott  Co.,  10  ib.  166  ;  McMillan  y.Boyles, 
14  ib.  107  ■;  Rock  i'.  Wallace,  14  ib.  593  ; 
Ten  Eyck  v.  Tiie  Mayor,  15  ib.  486; 
Chamberlain  v.  Burlington,  19  ib.  395  ; 
Hanson  v.  Vernon,  27  ib.  28 ;  Hubbard 
V.  Johnson  Co.,  23  ib.  130;  Harney  v. 
Charles,  45  Mo.  1.57  ;  Scribner  v.  Allen, 
12  Minn.  148  ;  Howes  v.  Racine,  21  Wise. 
514;  Mitchell  v.  Milwaukee,  18  ib.  92, 
97;  Bond  v.  Kenosha,  17  ib.  284,  287; 
Veeder  v.  Town  of  Lima,  19  ib.  280,  295- 
299;  Rochester  v.  Alfred  Bank,  13  ib. 
432,  439  ;  Sauerhering  v.  Iron  Bridge,  &c. 
R.  R.,  25  ib.  447  ;  Warden  v.  Supervisors, 
14  ib.  618;  Kellogg  v.  Oshkosh,  14  ib. 
623 ;  Nill  v.  Jenkinson,  15  Ind.  425 ; 
Lewis  V.  Henley,  2  ib.  332;  La  Fayette  v. 
Fowler,  34  ib.  140;  Harney  v.  Indian- 
apolis, &c.  R.  R.,  32  ib.  244;  Coffman  v. 


Putnam  Co  ,  24  ib.  509;  Oliver  v.  Put- 
nam Co.,  24  ib.  514;  Nave  v.  King,  27  ib. 
356 ;  Harrison  Co.  v.  McCarty,  27  ib. 
475;  Madison  Co.  v.  Brown,  28  ib.  161; 
Andrews  v.  Pratt,  44  Cal.  309  ;  Bucknall 
V.  Story,  36  Cal.  67;  Douglass  v.  Placer- 
ville,  18  Cal.  643  ;  Vanover  v.  Justices, 
&c.,  27  Ga.  354;  Brodna.x  r  Groom,  64 
N.  C.  244 ;  Galloway  v.  Jenkins,  63  N.  C. 
147;  Worth  v.  Fayetteville,  1  Wins.  (No. 
2,  liq.  N.  C.)  70;  Mobile  r.  Waring,  41 
Ala.  139 ;  Gilmer  i-.  Hill,  22  La.  An.  465; 
White  Sulphur  Springs  Co.  v.  Holly,  4 
W.  Va.  597  ;  Bull  v.  Read,  13  Gratt.  78; 
Baltimore  v.  Gill,  31  Md.  375,  395 ;  Stod- 
dert  V.  Ward,  31  Md.  562;  Lane  v. 
Schomp,  5  C.  E.  Green,  (N.  J.)  82;  Mer- 
rill V.  Plainfield,  45  N.  H.  126;  Barr  v. 
Deniston,  19  N.  H.  170,  180;  New  Lon- 
don u.  Brainard,  22  Conn.  552;  Scofield 
t'.  Eighth  School  Dist.,  27  ib.  499,504; 
Webster  v.  Ilarwinton,  32  ib.  131 ;  Terret 
V.  Sharon,  34  ib.  105 ;  Supervisors  ;;. 
Hubbard,  45  111.  139 ;  Viele}-  v.  Thompson, 
44  III.  9;  Cleghorn  v.  Postlewaite,  43  ib. 
428;  Taylor  v.  Thompson,  42  ib.  9; 
Clark  V.  Supervisors,  27  ib  305,  311 ; 
Butler  V.  Dunham,  27  ib.  474  ;  Perkins  v. 
Lewis,  24  ib.  208 ;  Robertson  v.  Rockford, 
21  ib.  451 ;  Prettyman  v.  Supervisors,  19 
ib.  400;  Drake  v.  Phillips,  40  ib.  388; 
Colton  V.  Hanchett,  13  ib.  615;  Dows  v. 
Chicago,  11  Wall.  108.  See  Dillon  on 
Munic.  Corp.  §§  727,  731-738  (2d  ed.); 
Allison  V.  Louisville,  &c.  R.  R.,  9  Bush, 


ACTIONS   BY  GRANTORS   OF   LAND.  173 

hand,  the  people  cannot  mamtain  a  civil  action  for  the  redress  of 
mere  private  wrongs.  An  action  can  be  brought  in  their  name 
only  to  uphold  and  enforce  a  distinct  right  on  their  part  in  re- 
spect to  the  subject-matter  of  the  controversy. ^ 

§  143.  The  last  clause  of  §  111  in  the  New  York  Code  was 
added  as  an  amendment  merely  for  puiposes  of  certainty,  and 
to  remove  all  possible  doubts  as  to  the  true  meaning  of  the  sec- 
tion. As  it  was  originally  enacted  without  this  clause,  a  doubt 
had  sometimes  been  suggested  Avhether  any  action  at  all  could  be 
brought  under  the  circumstances  mentioned  ill  the  amendment, 
that  is,  when  land  had  been  conveyed  by  an  owner  which  at 
the  time  was  held  by  a  disseisor  adversely  to  such  true  OAvner.  If 
brought  by  the  grantee,  he  could  show  no  title,  because  the  con- 
veyance to  him  would,  by  virtue  of  other  rules  of  the  law,  be 
deemed  a  nullity.  If  brought  in  the  name  of  the  grantor,  it 
might  be  said  that  lie  was  not  the  real  party  in  interest,  and, 
under  the  requirements  of  this  section,  was  forbidden  to  sue. 
The  code  was  therefore  amended  so  as  to  exclude  the  latter 
construction,  by  adding  the  final  provision  as  it  now  stands.  The 
purpose  of  this  amendment  is  really  to  limit  and  restrict  the  oper- 
ation and  effect  of  the  section  as  originally  enacted,  and  not  to 
create  any  new  authority  or  right  as  between  the  giantor  and 
the  grantee  for  the  use  of  the  former's  name  by  the  latter, 
nor  to  create  any  new  title  to  the  land  in  the  grantee  himself.^ 
An  express  provision  exists  in  the  codes  of  certain  States,  author- 
izing partnerships  to  sue  and  to  be  sued  by  and  in  their  firm- 
names,  without  making  the  individual  members  by  name  parties 
to  the  action.  This  provision  is  merely  permissive,  and  not  at  all 
compulsory  ;  it  is  not  a  substitute  for,  but  an  addition  to,  the 
former  existing  methods  of  conducting  suits. ^ 

247.     See  also  the  very  late  N.  Y.  cases,  ^  People  v.  Albany  &  Susq.  R.  R.,  57 

Longley  v.  City  of  Hudson,  4  N.  Y.  Sup.  N.  Y.   161.     People   v.    Ingersoll,   58  N. 

Ct.  353  ;  Marsh  v.  City  of  Brooklyn,  ib.  Y.  1 ;    People    v.   Fields,  58   N.  Y.   491. 

413;  Board  of  Comm'rs.  r.  Markle,4G  Ind.  See  People  v.  Sherwin,  2  N.  Y.  Sup.  Ct. 

96,  103-105  ;  Zorger  v.  Townsiiip  of  Rap-  528. 

ids,  36  Iowa,  175;    Minnesota  Oil  Co.  v.  -  Hamilton   v.  "Wright,  37  N.   Y.  502, 

Palmer,  20  Minn.  468  ;  Hodgman  v.  Chi-  507,  per  Woodruff  J. 

cago  &  St.  P.  K.  R.,  28  Minn.  48.  3  Whitman  v.  Keith,  18  Ohio  St.  134. 


17-i  CIVIL    EEMEDIES. 

SECTION  THIRD. 

THE  ASSIGNABILITY  OF  THINGS  IN  ACTION. 

§  144.  As  the  immediate  effect  of  the  statutory  provision  in 
the  preceding  section  is  to  enable  the  assignee  of  a  thing  in  action 
to  sue  in  his  own  name,  the  question  arises  and  becomes  very 
important  in  this  connection,  What  things  in  action  are  and  what 
are  not  assignable  ?  This  subject  is  most  intimately  bound  up 
with  that  which  immediately  went  before,  for  it  is  impossible  to 
determine  who  is  the  real  party  in  interest  in  all  cases  until  it 
has  been  determined  what  things  in  action  may  be  assigned. 
The  topic  has  its  legitimate  place,  therefore,  in  a  chapter  Avhich 
treats  of  parties.  Although  the  clause,  which  is  found  in  ex- 
actly the  same  words  in  all  the  State  codes,  —  "  Every  action 
must  be  prosecuted  in  the  name  of  the  real  party  in  interest,"  — 
allows  the  assignee  of  the  thing  in  action  to  sue  in  his  own  name, 
yet  it  does  not  of  itself  affect  the  quality  of  assignability  ;  it  does 
not  render  any  such  demands  assignable,  but  leaves  them  as  they 
were  before  its  enactment  under  the  operation  of  existing  rules 
of  the  law.  Even  the  clause  which  follows  in  some  of  the  States, 
—  "but  this  section  shall  not  be  deemed  to  authorize  the  assign- 
ment of  things  in  action  not  arising  out  of  contract,"  —  although 
doubtless  intended  to  limit  the  effect  of  the  preceding  general 
requirement,  has  really  no  practical  effect.  The  section  does  not 
authorize  the  assignment  of  any  things  in  action,  either  growing 
out  of  tort  or  out  of  contract,  and  it  was  therefore  an  empty 
legislative  prohibition  to  say  that  it  should  not  be  deemed  to 
authorize  the  assignment  of  those  arising  out  of  tort.  It  is  not 
said  that  those  things  in  action  arising  out  of  tort  shall  not  be 
assigned,  but  only  that  the  authority  for  such  a  transfer  shall  not 
be  found  in  this  particular  section  of  a  single  statute.  If  the 
right  to  assign  such  demands  is  conferred  b}'-  other  statutes,  or 
by  any  rules  of  the  law  independent  of  statute,  it  is  not  taken 
away  by  these  apparently  restrictive  clauses.  We  shall,  there- 
fore, find  in  all  the  States,  and  notwithstanding  this  special  pro- 
vision, that  things  in  action  arising  out  of  certain  kinds  and 
classes  of  torts  may  be  assigned  as  freely  and  as  fully  as  those 
springing  from  contracts. 


WHAT   THINGS   IN    ACTION    ARE    ASSIGNABLE.  175 

§  145.  The  assignability  of  demands  lying  in  action  was  well 
known  prior  to  the  codes  of  procedure.      All  contracts  in  the 
form  of  negotiable  paper  w^ere  of  course  transferable,  so  that  the 
holder  could  sue  upon  them  in  courts  of  law  in  his  own  name. 
Other  things  in  action  were  truly  assignable,  so  that  the  assignee 
was  regarded  as  the  real  owner,  but  on  account  of  certain  ancient 
technical  rules  of  the  common  law,  which  had  never  been  abro- 
gated, he  was  obliged  to  bring  an  action  on  them  at  law  in  the 
name  of  the  assignor ;  but  if  the  sul)ject  was  within  the  cogni- 
zance of  a  court  of  equity,  he  could  sue  in  that  tribunal  in  his 
own  name.     The  effect  of  the  codes  is  to  extend  this  equity  rule 
to  legal  actions.     To  ascertain  what  demands  are  thus  transfer- 
able, we  must  recur  to  rules  established  prior  to  and  independent 
of  the  new  system  which  regulates  procedure.     There  are  very 
few  statutes  which  expressly  legislate  upon  the  subject  of  assign- 
ability and  directly  confer  that  quality  ;  but  there  are  in  most 
if  not  all  the  States  special  laws  which  indirectl}^  produce  this 
result.      The  department  of  jurisprudence   which   controls  the 
succession  to  the  personal   estates  of  deceased  persons  is  now 
very  generally  reduced,- in  whole  or  in  part,  to  a  statutory  form. 
Among  these  express  enactments  are  almost,  if  not  quite,  univer- 
sally found  provisions  which  describe,  define,  and  enumerate  the 
kinds  and  classes  of  rights,  claims,  and  demands  which  had  be- 
longed to  the  decedent,  and  which  pass  to  his  executors  or  ad- 
ministrators as  assets  of  the  estate,  and  of  liabilities  which  had 
rested  upon  the  decedent,  and  M'hicli  pass  over  against  his  per- 
sonal representatives,  and  continue  to  rest  upon  them  in  their 
repiesentative  capacity.     In  other  words,  these  statutes,  follow- 
ing a  general  division  recognized  by  the  ancient  law,  but  often 
altering  that  division  in  its  details,  separate  the  rights,  claims, 
demands,  and  liabilities  which  can  belong  to  or  rest  upon  per- 
sons into  two  classes.    The  rights,  claims,  demands,  and  liabilities 
forming  the  one  class  survive  after  the  death  of  the  person  who 
held  or  was  subject  to  them,  and  pass  to  his  executors  and  ad- 
ministrators as  either  assets  of  or  as  claims  against  the  estate  in 
their  hands ;  those  of  the  other  class  cease  with  the  death  of  the 
person  wdio  held  or  was  subject  to  them,  and  do  not  pass  to  his 
representatives  as  assets  or  liabilities,  —  which   last  rule,  as  it 
anciently  existed,  was  expressed  by  the  maxim,  actio  personalis 
moritur  cum  persona. 


176  CIVIL    REMEDIES. 

§  14G.  Since  the  title  of  an  executor  or  administrator  is  re- 
garded by  our  law  as  a  title  by  assignment,  it  was  very  natural 
that  the  courts  should  consider  these  statutes  as  furnishing  the 
criterion  by  wliich  to  determine  what  things  in  action  are  assign- 
able and  what  are  not  assignable  between  living  parties.  In  this 
manner  the  statutes  referred  to  have  indirectly  produced  the  re- 
sult as  before  mentioned.  Following  the  analogies  furnished  by 
thera,  the  rule  is  generally  established  that  whatever  things  in 
action  will  survive  and  pass  to  the  personal  representatives  of  a 
decedent  as  assets  of  or  liabilities  against  an  estate,  are  assign- 
able by  the  direct  act  of  parties,  while  those  things  in  action 
which  will  not  thus  survive  and  pass  to  the  personal  representa- 
tives of  a  decedent  are  not  assignable.  This  general  principle 
will  be  developed,  and  the  authorities  sustaining  it  will  be  quoted, 
in  the  succeeding  paragraphs.  In  some  States  there  may  be  stat- 
utes expressly  dealing  with  the  subject  of  assignment  inter  vivos. 
Thus,  the  peculiar  legislation  of  Kentucky  has  already  been  no- 
ticed, which  in  terms  authorizes  the  assignment  of  negotiable 
paper,  bonds,  and  all  contracts  for  money  or  property  ;  and  the 
judicial  construction  of  the  enactment  has  also  been  described, 
which  holds  that  all  assignments  made  in  accordance  with  the 
provision  are  legal,  so  that  the  assignee  may  sue  alone,  but  that 
all  others  are  equitable,  so  that  while  the  assignee  must  bring 
the  action  because  he  is  the  real  party  in  interest,  the  assignor 
must  also  be  joined  as  a  party  either  plaintiff  or  defendant.  I 
shall  now  proceed  to  inquire  how  far  the  principle  thus  announced 
is  sustained  by  judicial  authority,  and  shall  illustrate  its  opera- 
tion by  an  examination  of  the  particular  cases  in  which  a  thing 
in  action  has  been  held  assignable  or  not  assignable. 

§  147.  First:  What*things  in  action  are  assignable.  It  is  fully 
established,  by  a  complete  unanimity  in  the  decisions,  that  causes 
of  action  which  survive  and  pass  to  the  personal  representatives 
of  a  decedent  as  assets,  or  continue  as  liabilities  against  such 
representatives,  are  in  general  assignable,  while  those  causes  of 
action  which  do  not  thus  survive  are  not  assignable.  By  the 
common  law,  causes  of  action  arising  out  of  contract,  unless  the 
contract,  being  still  executory,  was  purely  personal  to  the  dece- 
dent, or  unless  the  injury  resulting  from  its  breach  consisted 
entirely  of  personal  suffering,  bodily  or  mental,  of  the  decedent, 
did  thus  survive  ;  while  causes  of  action  arising  out  of  torts  did 


WHAT   THINGS   IN    ACTION   ARE   ASSIGNABLE. 


177 


not  in  general  survive.  The  statutes  in  most  if  not  all  the  States 
have  changed  this  ancient  rule,  and  have  greatly  enlarged  the 
class  of  things  in  action  which  survive.  It  is  now  the  general 
Ameiican  doctrine  that  all  causes  of  action  arising  from  torts  to 
property,  real  or  personal,  —  injuries  to  the  estate,  by  which  its 
value  is  diminished,  —  do  survive  and  go  to  the  executor  or  admin- 
istrator as  assets  in  his  hands.  As  a  consequence,  such  things  in 
action,  although  based  upon  a  tort,  are  assignable.^    The  criterion, 


1  Tlie  following  resume  of  authorities 
will  show  the  universality  of  this  rule, 
and  the  reasons  upon  which  it  is  hased. 
Hoyt  V.  Thompson,  5  N.  Y.  320,  347, 
per  Selilen  J. :  "  All  choses  in  action, 
emhracing  demands  which  are  consid- 
ered as  matters  of  property  or  estate, 
are  now  assignable  either  at  law  or  in 
equity.  Nothing  is  excluded  except 
mere  personal  torts  which  die  with 
the  party.  A  claim,  therefore,  for  prop- 
erty fraudulently  or  tortiousl\'  taken  or 
received,  or  \vr0ngfull3'  withlield,  and 
even  for  an  injury  to  real  or  personal 
property,  may  be  assigned  ;  "  citing  Peo- 
ple r.  Tioga  County,  19  Wend.  73  ; 
Haight  V.  Hayt,  19  N.  Y.  464,  467,  per 
Grover  J.  "  The  rule  of  the  common 
law  was,  that  actions  for  torts  die  with 
the  person,  and  could  not  be  maintained 
by  the  personal  representatives  of  the  in- 
jured party,  or  against  tliose  of  the  wrong- 
doer. The  statute  has  changed  the  law 
80  far  as  property  or  relative  rights  are 
affected  by  the  wrongful  act.  The  R.  S. 
of  N.  Y.  (v.  2,  p.  448,  §  1)  provide  that, 
for  wrongs  done  to  the  property  rights,  or 
interests  of  another,  for  whicli  an  action 
miglit  be  maintained  against  the  wrong- 
doer, such  action  may  be  brought  by  tlie 
person  injured,  or,  after  his  death,  by  his 
executors  or  administrators,  in  tiie  same 
manner  and  with  like  effect  in  all  respects 
as  actions  founded  upon  contracts.  Sec- 
tion 2  provides  that  the  preceding  section 
shall  not  extend  to  actions  for  slander  or 
libel,  or  to  actions  for  assault  and  battery, 
or  false  imprisonment,  nor  to  actions  on 
the  case  tor  personal  injuries  to  tiie  plain- 
tiff, or  to  the  person  of  t!ie  testator  or  in- 
testate of  any  executor  or  administrator. 
The  exceptions  contained  in  §  2  manifest 
the  intention  of  the  legislature,  that  all 
other  actions  founded  upon  tort  should 


survive."  Byxbie  v.  Wood,  24  N.  Y. 
607,  611,  per  Gould  J.  "  But,  conceding 
that  a  tort  is  one  of  the  elements  that  go 
to  make  up  this  cause  of  action,  it  will  be 
found  to  be  assignable.  It  will  be  seen  to 
be  of  that  class  of  torts  the  right  of  action 
for  which  would  survive  to  the  personal 
representatives  of  tiie  claimant,  and  the 
poicer  to  assign  and  to  li'ansmit  to  person- 
al representatives  are  convertible  proposi- 
tions." Graves  v.  Spier,  58  Barb.  349, 
386,  per  Johnson  J.  "  All  the  cases  agree 
that  it  [the  cause  of  action]  is  assignable, 
if  the  cause  of  action  survives  and  may 
be  maintained  by  or  against  the  personal 
representatives  of  the  parties  to  the  trans- 
action. We  have  seen  tiiat  a  cause  of 
action  like  the  one  before  us  does  so  sur- 
vive." Butler  V.  N.  Y.  &  Erie  R.  R.,  22 
Barb.  110,  112,  per  Mason  J.  "  On  the 
other  hand,  when  the  injury  affects  the 
estate  rather  than  the  person,  when  the 
action  is  brought  for  damages  to  the 
estate,  and  not  for  injury  to  the  person, 
personal  feelings,  or  character,  the  right 
of  action  can  be  bought  and  sold.  Such 
a  right  of  action  upon  the  death,  bank- 
ruptcy, or  insolvency  of  the  party  injured 
passes  to  the  executor  or  assignee  as  a 
part  of  his  assets,  because  it  affects  his 
estate,  and  not  his  personal  rights.  .  .  . 
Mere  personal  torts  whicli  die  with  the 
person,  such  as  slander,  assault  and  bat- 
tery, false  imprisonment,  seduction,  and 
the  like,  are  not  assignable  ;  but  torts  for 
taking  and  converting  personal  property, 
or  for  injury  to  personal  property,  and  it 
seems,  generally,  all  such  rights  of  action 
for  a  tort  as  would  survive  to  the  personal 
representative  of  the  party,  may  be  as- 
signed so  as  to  pass  an  interest  to  the 
assignee,  which  he  can  assert  in  his  own 
name  in  a  civil  action  under  the  code,  as 
he  formerly  might  do  in  the  name  of  the 
12 


178 


CIVIL   REMEDIES. 


therefore,  by  Avliieh  to  judge  of  the  assignability  of  things  in 
action,  is  to  ascertain  whether  the  demand  survives  upon  the 
decease  of  the  party,  or  dies  with  him.  If  all  things  in  action 
are  separated  into  two  classes  by  this  line  of  division,  those  em- 
braced in  the  first  class  are  assignable,  and  those  which  fall  into 
the  second  are  not.  In  the  first  class  are  all  claims  arising  from 
the  breach  of  contracts,  with  certain  well  defined  excej)tions,  and 
those  arising  from  torts  directly  to  real  or  personal  property,  and 
frauds,  deceits,  and  other  wrongs  by  which  an  estate,  real  or  per- 
sonal, is  injured,  diminished,  or  damaged.     In  the  second  class 


assignor  at  law."  Zabriskie  v.  Smith,  13 
N.  Y.  322,  333,  per  Denio  J.  "The 
maxim  of  tlie  common  law  is,  '  actio  per- 
sonalis moritur  cum  jicrsotia.'  This  princi- 
ple was  not  originally  applied  to  causes  of 
action  growing  out  of  the  breach  of  a  con- 
tract. They  were  parcel  of  the  personal 
estate  in  reference  to  which  the  adminis- 
trator or  executor  represents  the  person 
of  the  deceased,  and  is  in  law  his  assignee. 
But,  as  to  this  class  of  rights  of  action, 
late  cases  have  somewhat  qualified  the 
rule  :  and  it  is  now  well  settled  that  an 
executor  or  administrator  cannot  main- 
tain an  action  upon  an  express  or  implied 
promise  to  the  deceased,  when  the  dam- 
age consists  entirely  of  tlie  personal  suf- 
ferings of  the  deceased,  whether  mental 
or  corporeal.  Actions  for  the  breach  of  a 
promise  of  marriage,  for  unskilfulness  of 
medical  practitioners  contrary  to  their  im- 
plied undertaking,  the  imprisonment  of  a 
party  on  account  of  the  neglect  of  his 
attorney  to  perform  his  professional  en- 
gagements, fall  under  this  head,  being 
considered  as  viriuall}'  actions  for  injuries 
to  the  person.  (Chamberlain  v.  William- 
son, 2  M.  &  S.  408).  ...  But  all  actions 
ex  delicto  were  governed  by  the  maxim," 
until  statutes  teinj).  Edw.  III.  allowed 
executors  and  administrators  to  bring 
trespass  de  Imnis  asportatis  when  the  tak- 
ing was  in  the  lifetime  of  the  deceased. 
"  These  statutes  have  been  greatly  ex- 
tended by  an  equitable  construction 
(Williams  on  Kxecutors,  Vol.  1,  p.  G70) ; 
but  I  do  not  find  that  an  action  on  the 
case  for  a  deceit  lias  ever  been  considered 
as  within  the  purview  of  these  statutes. 
.  .  .  If  it  be  true  that  the  executors  and 
administrators  are  the  testator's  assignees. 


it  is  fair  to  assume  that  they  take  what- 
ever of  a  personal  nature  the  deceased 
had  which  was  capable  of  assignment ; 
and  thus  the  power  to  assign  and  to  trans- 
mit to  personal  representatives  are  con- 
vertible propositions.  .  .  .  Any  interest 
to  which  the  personal  representatives  of 
a  decedent  would  not  succeed  is  not  the 
subject  of  an  assignment  inter  vivos."  Al- 
though the  principle  laid  down  by  tlie 
learned  judge  in  this  opinion  was  correct, 
yet  it  is  evident  that  he  entirely  over- 
looked the  New  York  statute,  which  de- 
fines the  causes  of  action  wliich  survive. 
Judge  Denio's  oversight  of  this  statute  is 
pointed  out  in  subsequent  cases  in  the 
same  court.  ^Veire  c.  Davenport,  11 
Iowa,  49,  52,  per  Wright  J.  "  It  is  con- 
tended that  the  liability  of  the  city  was 
for  a  tort,  and  that  this  could  not  be  as- 
signed. This  was  true  at  the  common 
law,  so  far  at  least  that  the  right  of  action 
for  such  an  injury  could  not  be  trans- 
ferred. What  change  the  code  has  made 
in  this  resjiect  we  need  not  stop  to  in- 
quire, for  the  reason  that  we  entertain  no 
doubt  that  such  a  liability  may  be  sold 
and  transferred.  It  may  be  sold  just  as  a 
horse  or  any  other  property  may  be,  and 
the  title  passes  as  completely.  .  .  .  The 
code  has  not  narrowed  the  assignability 
of  claims.  Whatever  could  be  assigned 
before  may  be  still,  and  some  claims  are 
made  assignable  wiiich  before  were  not." 
Tyson  v.  McGuineas,  25  Wise.  656,  per 
Cole  J.  "  It  would  seem  generally  that 
all  such  rights  of  action  for  torts  as  would 
survive  to  the  personal  representatives 
may  be  assigned  so  as  to  pass  an  interest 
to  the  assignee  which  he  can  now  assert 
in  his  own  name." 


WHAT   THINGS    IN    ACTION    ARE    ASSIGNABLE.  179 

are  all  torts  to  the  person  or  character  when  the  injury  and  dam- 
age are  confined  to  the  body  or  the  feelings,  and  those  contracts, 
generally,  though  not  always,  implied,  the  breach  of  which  pro- 
duces only  direct  injury  and  damage,  bodily  or  mental,  to  the 
person  ;  and  contracts,  so  long  as  they  are  executory,  which 
stipulate  solely  for  the  special  personal  services,  knowledge,  and 
skill  of  a  contracting  party.  Among  the  instances  of  the  first  of 
these  two  classes  are  the  breach  of  a  promise  of  marriage,  injuries 
done  by  the  want  of  skill  of  a  medical  practitioner  contrary  to 
his  implied  undertaking,  and  tlie  like.^  In  most  of  these  cases, 
and  probably  all  except  the  promise  of  marriage,  the  wrong-doer 
might,  under  the  old  practice,  have  been  sued  in  an  action  on  the 
case  for  a  neglect  of  his  duty,  as  well  as  in  assumpsit  for  a  breach 
of  his  implied  undertaking ;  and  it  is  thus  plain  that  this  excep- 
tion to  the  general  doctrine  under  consideration  is  more  apparent 
than  real,  for  it  rests  entirely  upon  the  fiction  of  regarding  a  cer- 
tain transaction  as  a  contract,  when  in  fact  no  contract  of  the 
sort  supposed  was  made. 

§  148.  As  a  result  of  these  general  principles  it  is  fully  estab- 
lished that  a  right  of  action  to  recover  damages  for  the  wrongful 
taking  and  carrying  away,  or  the  wrongful  conversion  of  personal 
property,  is  assignable.^  In  the  same  manner  a  demand  for  com- 
pensation arising  from  injuries  to  land,  whether  done  directly  and 
with  force,  or  the  result  of  negligence,  may  be  assigned;-^  also 
demands  arising  from  injuries  to  personal  property,  either  in  the 
form  of  trespasses  with  violence  or  of  wrongs  done  through  neg- 
ligence and  want  of  skill,  —  as,  for  example,  a  claim  against  a 
railroad  compan}^  for  carelessly  running  over  and  killing  cattle  by 
means  of  its  trains.*     An  illustration  of  the  rights  of  action  for 

1  Zabriskie  i:  Smith,  13  N.  Y.  833,  per  Disney,  58  ;  Weire  v.  Davenport,  11 
Denio  J.;  Chamberlain  v.  Williamson,  2  Iowa,  49  ;  More  v.  Massini,  32  Cal.  590; 
M.  &  S.  408;  Meech  v.  Stoner,  19  N.  Y.  Haight  v.  Green,  19  Cal.  113.  In-  these 
29,  per  Comstock  J. ;  Wade  v.  Kalbfleisch,  cases  the  decision  was  put  expressly  upon 
68  N.  Y.  282.  the  ground  that  claims  of  the   kind   ia 

2  McKee  v.  Judd,  12  N.  Y.  622 ;  question  having  been,  by  statutes  of  the 
Sherman  v.  Elder,  24  N.  Y.  381  ;  Hawk  respective  States,  made  to  survive,  they 
V.  Thorne,  54  Barb.  164 ;  Richtmeyer  v.  were  therefore  assignable.  A  claim  of 
Remsen,  38  N.  Y.  206 ;  Grocers  Nat.  damages  for  waste  against  a  tenant. 
Bank  w.  Clark,  48  Barb.  26  (a  claim  for  the  Rutlierford  v.  Aiken,  3  N.  Y.  Sup.  Ct. 
fraudulent  misapplication  of  funds  by  an  60. 

officer  of  a  bank) ;  Smith  v.  Kennett,  18  *  Butler  v.   N.   Y.  &  Erie  R.   R.,  22 

Mo.  154 ;  Lazard  v.  Wheeler,  22  Cal.  139 ;  Barb.  110.     See  Mc Arthur  v.  Green  Bay, 

Tyson  v.  McGuineas,  25  Wise.  656.  &c.   Canal  Co.,  34  Wise.   139,   152,  153, 

3  Hall    V.    Cincinnati,    &c.    R.    R.,    1  per  Lyon,  J. 


180  CIVIL    REMEDIES. 

negligent  injuries  to  land  which  are  assignable,  is  that  resulting 
from  the  setting  on  fire  and  burning  up  of  grass,  hay,  and  fences 
by  coals  carelessly  dropped  from  passing  engines.^  Falling  under 
the  same  principle  is  the  case  of  a  claim  against  a  common  carrier 
for  a  breach  of  his  contract  or  duty  in  failing  to  deliver  the  goods 
at  all,  or  in  injuring  them  while  on  the  transit.  This  is  a  very 
plain  case,  for  at  the  common  law  the  injured  party  might  sue 
in  assumpsit  upon  the  carrier's  promise  express  or  implied,  or  in 
case  upon  his  general  duty.^  The  same  is  true  of  a  demand  in 
favor  of  a  guest  against  an  innkeeper,  and,  in  fact,  in  favor  of  any 
bailor  against  his  bailee  for  a  breach  of  the  latter's  duty  whereby 
the  property  bailed  is  lost,  destroyed,  or  injured.^ 

§  149.  The  following  are  additional  instances  of  assignable 
rights  of  action  arising  from  injuries  done  to  property  through  the 
negligence  or  unskilfulness  of  the  wrong-doer ;  against  a  person 
who  had  contracted  with  the  State  to  keep  a  navigable  canal  in 
repair,  for  an  injury  done  to  a  boat  by  means  of  an  obstruction 
carelessly  suffered  to  remain  in  the  water-way  ;  *  against  a  sheriff 
for  neglecting  to  arrest  a,  defendant  upon  a  body  execution  issued 
to  him  ;  ^  against  a  bank  for  neglecting  to  make  a  proper  demand 
of  payment  of  a  note  left  with  it  for  collection,  and  to  take  other 
steps  necessary  to  charge  the  indorsers,  whereby  through  the 
insolvency  of  the  maker  the  debt  was  lost.^  Even  the  claim, 
under  the  statute,  of  a  next  of  kin,  for  damages  caused  by  the 
wrongful  killing  a  person,  is  assignable  ;  the  statute  makes  the 
demand  assets  of  the  estate  so  far  as  the  distributees  are  con- 
cerned, although  not  generally,  and  it  is  thus,  by  virtue  of  the 
statute,  a  property  and  not  a  mere  personal  right." 

§  150.  The  same  doctrine  is  applied  to  claims  growing  out  of 
fraud  and  false  representations,  if  the  deceit  is  practised  in  some 
transaction  relating  to  the  buying,  selling,  or  other  dealing  with 

1  Fried  v.  N.  Y.  Cent.  R.  R.,  25  How.  demand  was  held  assijrnable  because  the 

Pr.  R.  '285.  wrong  was  done  to  the  property-  riglits  or 

-  Waldron  v.  Willard,  17  N.  Y.  466,  in  interests  of  tlie  assignor,  and  the  cause  of 

wliicli  the  original  owner  simp!}-  assigned  action    would   survive.      It    was   such  a 

"  all  his  interest  in  the  goods."     Merrill  wrong,  because  taking  the  body  of  the 

V.  Grinnell,  30  N.  Y.  5'J4.  debtor  in  execution  is  a  satisfaction  of 

3  Stanton    v.   Leland,  4   E.  D.  Smith,  the  judgment. 
88 ;  Merrick  v.  Brainard,  38  Barb.  574.  6  Ayrault   v.    Pacific    Bank,    6   Robt. 

*■  Fulton  Fire  Ins.  Co.  v.  Baldwin,  37  337. 
N.  Y.  648.  T  Quin  v.  Moore,  15  X.  Y.  432. 

s  Dininny  v.  Fay,  38  Barb.  18.     The 


WHAT   THINGS   IN   ACTION    AEE   NOT   ASSIGNABLE.  181 

real  or  personal  property,  or  if  it  be  made  in  a  contract  by  which 
real  or  personal  property  is  to  be  acquired  or  transferred,  or  if  it 
be  the  basis  of  or  inducement  to  any  act  which  results  in  a  change 
of  right  relating  to  propert3^  Of  course,  any  fraud  or  false 
representation  Avhich  merely  affected  personal  relations,  or  was 
the  basis  or  occasion  of  any  change  in  purely  personal  status  or 
condition,  independent  of  and  not  connected  with  property, 
would  not  give  rise  to  a  cause  of  action  which  survives  and  is 
assignable.  In  accordance  with  the  rule  thus  stated,  a  demand 
for  damages  arising  from  false  representations,  or  from  fraud  of 
any  kind,  in  the  sale  and  purchase  of  land,  would  survive  and 
may  be  assigned  ;  and  the  same  is  true  in  respect  to  a  sale  of 
goods.^  And  a  claim  to  recover  money  or  other  personal  property 
which  the  defendant  had  obtained  or  procured  to  be  transferred 
to  him  b}'  fraud,  is  assignable.^  The  right  of  action  given  by 
statute  to  recover  back  money  lost  in  gaming  is  assignable  ;  ^  and 
also  a  judgment  rendered  of  damages  for  the  commission  of  any 
tort  whatsoever;  for,  although  the  tort  itself  may  have  been  purely 
personal,  it  is  completely  merged  in  the  judgment  which  is,  by  a 
very  ancient  conception  of  the  law  still  left  existing,  regarded  as 
"  a  contract  of  record."  * 

§  151.  The  following  are  examples  of  demands  arising  out  of 
some  special  forms  of  contracts,  and  of  special  rights  and  interests 
analogous  to  if  not  technically  things  in  action,  which  have  been 
held  assignable.  In  reference  to  the  contracts  specified,  the  only 
possible  doubt  which  could  be  suggested  was,  whether  they  did 
not  fall  within  the  class  of  agreements  purel}'  personal  in  their 
nature,  the  right  of  action  arising  from  which  does  not  survive. 
A  contract  entered  into  by  a  private  person  with  the  prison 
authorities  of  the  State,  for  the  hiring  of  the  services  of  a  stipu- 
lated number  of  convicts  at  a  particular  State  prison,  to  be 
employed  in  a  certain  occupation,  was  held  assignable  by  the 

1  Haight  V.  Hayt,  19  N.  Y.  464;  the  provision  of  the  N.  Y.  R.  S.  (Vol.  2, 
Graves  v.  Spier,  58  Barb.  349;  Johnston  p.  447,  §§  1,  2),  which  determine  what 
V.  Bennett,  5  Abb.  Pr.  (N.  S.)  331 ;  Wood-  rights  of  action  survive  and  what  do  not. 
burv  V.  Ueloss,  65  Barb.  501.  3  Meech  v.  Stoner,  19  N.  Y.  26  ;  Mc- 

2  Byxbie  i-.  Wood.  24  N.  Y.  607,  609;  Dougall  v.  Walling,  48  Barb.  364;  Hen- 
Grocers  Nat.  Bank  r.  Clark,  48  Barb.  26.  drickson  v.  Beers,  6  Bosw.  6-39.  Contra, 
In  the  first  of  these  cases,  Zabriskie  v.  Weyburn  i\  White,  22  Barb.  82,  which  is 
Smith,  13  N.  Y.  322,  was  distinguished,  overruled  by  the  later  cases. 

and  the  correctness  of  the  decision  was         ^  Charles  v.  Haskins,  11  Iowa,  329. 
questioned  because  the  court  overlooked 


182  CIVIL   REMEDIES. 

New  York  Court  of  Appeals.  The  agreement  was  not  a  stipu- 
lation for  the  personal  services  of  the  contractor,  nor  was  he  in  a 
position  of  any  public  or  personal  trust  or  confidence,  and  the 
State  officials  having  no  claim  upon  liis  individual  acts  in  prefer- 
ence to  those  of  another,  his  interest  could  be  transferred.'  A 
contract  of  guaranty  ma}^  be  assigned  ;  ^  and  the  right  to  a  trade- 
mark;^ a  widow's  right  to  dower  before  admeasurement;*  the 
claim  of  a  rightful  officer  against  an  intruder  for  the  fees  of  the 
office  received  by  the  latter  during  the  period  of  his  occupancy  ;^ 
a  sheriff's  demand  against  an  attorney  for  his  fees  in  executing 
process;*^  bonds  taken  by  sheriffs  and  other  officers  in  the  pro- 
gress of  an  action  for  the  protection  of  a  party  thereto.'^  An 
assignment  of  demands  in  expectancy  is  valid  in  equity  as  an 
agreement,  and  becomes  an  absolute  transfer  as  soon  as  the 
demands  arise  and  come  into  existence  in  favor  of  the  assignor ; 
and  the  assignment  of  joart  of  a  demand  of  which  notice  is  given 
to  the  debtor  is  also  good  in  equity,  so  that  when  separate  por- 
tions are  thus  assigned  to  different  jjersons,  each  assignee  may 
maintain  an  action  to  recover  the  part  transferred  to  him.^ 

§  152.  Second :  What  things  in  action  are  not  assignable.  The 
general  principle  which  determines  what  claims,  demands,  and 
rights  of  action  are  not  assignable,  has  been  already  fully  stated 
in  the  text  and  in  the  quotations  placed  in  the  notes,  and  need 
not  be  repeated.  It  is  simply  necessary  to  ascertain,  and  the 
sole  practical  difficulty  consists  in  ascertaining,  what  particular 
torts  are  injuries,  bodily  or  mental,  to  the  person  only,  or  to  the 
reputation,  and  what  particular  contracts  are  purely  personal,  so 

1  Horner  v.  Wood,  23  N.  Y.  350.  been  paid,  and  the  plaintiff  notified  the 

-  Small  V.  Sloan,  1  Bosw.  352.  city  of  the  transfer.     Bull  proceeded  with 

8  Lockwood  V.  Bostwick,  2  Daly,  521.  his   work,  and  amounts  became   due  to 

*  Strong  V.  Clem,  12  Ind.  37.  him,  which  satisfied  the  two  prior  assign- 
5  Piatt  V.  Stout,  14  Abb.  Pr.  178.  ments,  and  were  more  than  enough  to 
'•  Birbeck  i\  Stafford,  14  Abb.  Pr.  285.  satisfy  the  plaintiff's  demand.  The 
"  Moorman  i\  Collier,  32  Iowa,  138.  Court   of    Appeals    held    in    accordance 

*  Field  V.  The  Mayor,  &c.  of  New  with  the  rules  stated  in  the  text,  and 
York,  fj  N.  Y.  179.  This  action  was  com-  also  that  payment  by  the  debtor  —  the 
menced  in  equity  before  the  code.  One  city  —  to  the  original  creditor, —  Bull, — 
Bull  had  various  contracts  with  the  city  after  notice  of  the  assignment,  is  no  de- 
of  New  York  for  printing,  and  was  en-  fence  to  an  action  b}-  the  assignee.  Al- 
gaged  in  their  performance  by  printmg  though  this  suit,  commenced  under  the 
for  the  city.  He  assigned  to  G.,  and  G.  to  old  system,  was  in  equity,  the  doctrine 
the  plaintiff,  whatever  might  become  ilue  recognized  by  it  must  be  applicable  to  a 
thereon  to  the  amount  of  S1500,  after  two  civil  action  under  the  code.  See  Bliss  v. 
certain  other  prior  similar  assignments  had  Lawrence,  58  N.  Y.  442. 


WHAT   THINGS    IN    ACTION    ARE    NOT    ASSIGNABLE.  183 

that  the  right  to  enforce  them,  or  the  liability  springing  from 
them,  does  not  survive  after  the  death  of  a  contracting  party.^ 
The  following  cases  are  given  as  illustrations  of  such  wrongs  and 
of  such  contracts.  A  cause  of  action  for  injuries  to  the  jierson 
caused  by  negligence  is  not  assignable,  eveu  though  the  injured 
party  has  an  election  whether  to  base  his  demand  upon  the  tort 
or  to  sue  upon  a  contract  express  or  implied ;  for  example,  a 
right  of  action  against  a  railroad  corporation  for  injuries  caused 
by  negligence  to  the  person  of  a  passenger.  If  the  right  is 
regarded  as  arising  from  a  breach  of  the  contract  to  carry  safely, 
such  contract  itself  falls  within  the  class  mentioned  above,  since  its 
violation  causes  mere  bodily  or  mental  injuries  to  the  person,  and 
not  in  any  manner  to  property.  The  quality  of  assignability 
cannot  be  impressed  upon  a  demand  by  changing  the  theory  of 
the  action  brought  upon  it.^  A  verdict  rendered  in  an  action  for 
a  personal  tort  is  not  assignable  ;  the  verdict  does  not  change 
the  nature  of  the  right  ;  it  liquidates  the  amount  of  the  damages, 
but  there  is  no  debt  or  claim  which  can  pass  b}^  assignment  until 
a  judgment  is  recovered.^  It  was  decided  by  the  New  York 
Court  of  Appeals,  in  a  well  considered  case,  that  a  claim  of 
damages  for  falsely  and  fraudulently  representing  a  person  to  be 
solvent,  by  which  the  party  to  whom  the  representations  were 
made  was  induced  to  sell  goods  to  such  person  on  credit,  and 
thereby  lost  the  same  or  their  price,  was  not  assignable.  This 
case  was  distinguished  from  that  in  which  the  wrong-doer  by 
false  statements  procures  goods  to  be  sold  to  himself  on  credit, 
and  it  was  said  that  the  gist  of  the  action  was  a  pure  deceit,  a 
tort  to  the  person  and  not  an  injury  to  property  rights.*  Although 
Zabriskie  v.  Smith  has  not  been  expressly  overruled,  its  reasoning- 
has  been  disapproved,  and  it  is  at  least  very  much  shaken.  It  is 
conceded  that  the  court,  in  rendering  its  judgment,  overlooked  a 

1    A   non-negotiable   note,    payable  in  consequence.     The  cause  of  action    was 

work  and  labor,  is  assignable.     Schnier  v.  held  to  be  for  a  mere  personal  tort,   while 

Fay,  12  Kans.  184 ;  Williams  v.  Norton,  the  other  averments  were  of  special  dara- 

3  Kans.  2y5.  ages.     Noonan  v.  Orton,  34  Wise.  2-59. 

-^  Purple    V.  Hudson    River   R.    R.,  4  3  Brooks  ;•.  Hanford,  15  Abb.  Pr.  342; 

Duer,  74 ;  s.   c,   1  Abb.    Pr.   33 ;    Hodg-  Crouch  v.  Gridley,  6  Hill,  2.50 ;  Kellogg 

man  u.  Western  R.  R.,  7   How.  Pr.  492.  v.   Schuyler,  2   Denio,    73;  Lawrence  v. 

A  claim  for  damages   resulting  from   a  Martin,  22  Cal.  173  (verdict  in  an  action 

malicious  'prosecution  and  abuse  of  legal  for  malicious  prosecution), 
process  was  held  not  assignable,  although  *  Zabriskie    v.  Smith,    13   N.  Y.  322; 

the  complaint  alleged  injury  to  the  assign-  Hyslop  v.  Randall,  4  Duer,  660  (S.  T.) 
or's  business  and  loss   of  property  as  a 


184  CIVIL   REMEDIES. 

section  of  the  statute  which  virtually  enumerates  the  classes  of 
demands  arising  from  torts  which  cannot  be  assigned,  and  which 
enumeration  does  not  include  the  demand  in  question.  As  the 
cases  decided  subsequently  are  quite  inconsistent  with  the  con- 
clusion reached  in  this  case,  it  may  be  regarded  as  substantially 
overruled  ;  and,  applying  the  doctrine  of  those  authorities,  it  would 
seem  tliat  the  right  of  action  for  such  a  deceit  is  assignable.^ 

§  ir)3.  It  has  been  held  in  one  or  two  instances  that  a  demand 
against  a  common  carrier  for  the  loss  of  goods  intrusted  to  him 
was  not  assignable  ;  ^  nor  the  cause  of  action  given  by  statute  to 
recover  back  money  lost  in  gaming  ;  ^  but  these  decisions  are 
clearly  wrong,  and  have  been  many  times  overruled,  as  is  seen  by 
authorities  cited  in  former  paragraphs.  A  wife's  inchoate  right  of 
dower  is  not  the  subject  of  grant  or  of  assignment."*  The  follow- 
ing are  illustrations  of  personal  interests  or  rights  Avhich  cannot 
be  assigned :  the  right  given  to  the  debtor  by  statute  to  have 
bills,  notes,  and  other  securities  avoided  or  cancelled  on  the 
ground  of  usury  ;  ^  the  right  held  by  a  covenantee  to  set  aside, 
on  account  of  fraud,  a  release  which  he  had  given  of  a  covenant 
in  his  favor;®  the  right  of  a  grantor  to  avoid  his  conveyance  on 

'  In  Haight  v.  Hayt,  19  N.  Y.  464,  467,  commenting  upon  it  and  distinguishing  it 

Grover  J.,  after  quoting  theN.  Y.  R.  S.  v.  from  tlie  one  before  the  court,  remarked : 

2,  p.  448,  §§  1  and  2, —  the  first  of  wliich  "  As  to  that  decision,  it  may  be  advisable 

sections   dechares    that    demands    arising  to  see  how  fully  it  accords  with  the  K.  S. 

from  torts  to  property  rights  shall  survive,  vol.2,  p.  447,  §§   1   and  2."     Finally,  in 

and   the   second   of  which  provides  that  Johnston  v.  Bennett,  5  Abb.  Pr.  (N.  S.) 

the  first  shall  not  extend  to  "actions  for  331,  332,  Jones  J.  said  :  "  When  Zabriskie 

slander,  for  libel,  or  to  actions  for  assault  v.  Smith  was  decided,  these  provisions  of 

and  battery  or  false  imprisonment,  nor  to  the  statute  (§§  1,  2,  supra)  do  not  appear 

actions  on  the  case  for  injuries  to  the  per-  to  have  been  called  to  the  attention  of  tlie 

son   of   the  plaintiff  or  to  the  person  of  learned  judge  who  delivered  the  opinion." 

the  testator  or  intestate,"  —  adds:  "The  On  the   other  hand,  in  Graves  i\  Spier, 

exceptions  contained  in  the   second  sec-  58  Barb.  34'J,  Mr.  Justice  Johnson  in  his 

tion  manifest  the  intention  of  the  legisla-  elaborate  ojiinion  seems  to  recognize  Za- 

ture  that  all  other  actions  founded  upon  briskie  v.  Smith  as  good  law  ;  at  least  he 

tort  siiould  survive."     And  Judge  Denio,  carefull}'   discriminates   it   from   the  one 

who  had  himself  delivered  the  opinion  in  then  under  consideration,  points  out  the 

Zabriskie  v.  Smitli,  said  in  this  same  case,  differences,  and  does  not  suggest  a  doubt 

in  reference  to  these  sections  of  the  stat-  as  to  its  correctness. 

ute  :  "  The  exception  in  §  2  shows,  if  there  -  Thurman  v.  Welles,  18  Barb.  500. 

was  otherwise  any  doubt,  that  the  prior  "*  Weyburn  v.  White,  22  Barb.  82. 

section  was  intended  to  embrace  the  case."  ^  Moore  v.  Mayor,  &c.  of  New  York, 

This  reasoning  and  tliese  statutory  provi-  8  N.  Y.  110,  per  Gardiner  J. 

sions  are  entirely  inconsistent   with  the  "  Bullard   v.   Raynor,   30  N.  Y.   197; 

decision    made    in    Zabriskie    v:    Smith.  Boughton  v.  Smith,  26  Barb.  635. 

Again,  in  Byxbie  r.  Wood,  24  N.  Y.  610,  •>  Milwaukee  &  Minn.  R.  R.  v.  Milwau- 

Gould  J.,  speaking  of  the  same  case,  after  kee  &  West.  R.  R.,  20  Wise.  174. 


THE    ASSIGNMENT    SUBJECT    TO    DEFENCES.  185 

the  grouucl  of  fraud  ;  ^  and  the  vendor's  right  of  lien  on  land  sold, 
for  the  purchase  price  thereof.^ 


SECTION    FOURTH. 

THE   EFFECT   OF   AN   ASSIGNMENT   OF  A   THING   IN  ACTION   UPON 
THE   DEFENCES   THERETO. 

§  154.  The  statutory  provision  found  in  the  various  State 
codes  which  relates  to  the  subject-matter  of  this  section  is  the 
following  :  "  In  the  case  of  an  assignment  of  a  thing  in  action,  the 
action  of  the  assignee  shall  be  without  prejudice  to  any  set-off  or 
other  defence  existing  at  the  time  of  or  before  notice  of  the  assign- 
ment ;  but  this  section  shall  not  apply  to  [negotiable  bonds, 
Ohio,  Kansas,  Nehraska~\  negotiable  promissory  notes  and  bills  of 
exchange,  transferred  in  good  faith  and  upon  good  consideration, 
before  due."^  In  Ohio,  Kansas,  Nebraska,  and  Washington, 
the  phraseology  is  slightly  different.  It  reads :  "  The  action  of 
the  assignee  shall  be  without  prejudice  to  any  set-off  or  other 
defence  now  allowed."*  Tlie  consideration  of  the  topics  em- 
braced in  this  provision  should,  in  a  strictly  scientific  method, 
form  a  part  of  the  general  subject  of  Defences,  and  might  prop- 
erly be  postponed  until  this  portion  of  the  work  is  reached  ;  but 
I  have  chosen  to  pursue  the  order  of  the  codes  themselves,  which 
is  the  same  in  all  the  States,  rather  than  to  adopt  one  more  theo- 
retically correct,  yet  perhaps  not  more  practically  advantageous. 

§  155.  It  is  important  that  the  defences  which  this  clause 
admits,  should  be  carefully  distinguished  from  the  counter-claim 
subsequently  provided  for  by  the  statute.  This  section  speaks 
of  defences  which,  as  they  ask  no  affirmative  relief,  and  simply 
prevent  the  plaintiff  from  succeeding,  may  be  made  available 
against  an  assignee  as  well  as  against  the  original  creditor.  The 
counter-claim  is    more  than   a  defence :    it  assumes  a  right  of 

1  Smith  V.  Harris,  43  Mo.  557.  §§  28,  382  ;  Nevada,  §  5  ;  Dacotah,  §  65 ; 

^  Baum  r.  Grigsby,  21  Cal.  172 ;  Lewis  Iowa,  §   2546    (sliglitly    altered);    North 

V.    Covillaud,  21    Cal.    178 ;   Williams   v.  Carolina,    §   55  ;    Idaho,    §  5 ;    Montana, 

Young,  21  Cal.  227.  §  5;  Washington,  §  3;  Wyoming,  §  33; 

3  New  York,  §  112;  Minnesota,  §  27  ;  Arizona,  §  5. 
California,  §  368 ;  Wisconsin,  ch.  122,  §  13;  4  Ohio,  §  26  ;  Kansas,  §  27  ;  Nebraska, 

Indiana,  §  6 ;  Florida,  §  63 ;    Kentucky,  §  29 ;  Washington,  §  3,  slightly  varied. 
§  31 ;   South   Carolina,   §   135 ;    Oregon, 


186  CIVIL   REMEDIES. 

action  aoainst  and  demands  a  recovery  of  affirmative  relief  from 
the  plaintiff  in  the  suit,  and  is,  therefore,  impossible  as  ag'ainst  an 
assignee  suing,  if  it  existed  against  the  assignor.  The  proposi- 
tion here  stated  is  very  simple  and  plain,  and  yet  the  defences 
permitted  against  the  assignee  by  this  section  have  been  some- 
times confounded  with  counter-claims,  and  that  even  by  judges 
and  courts. 

§  loG.  The  section  quoted  above,  and  which  is  substantially 
the  same  in  all  the  States,  does  not  change  the  then  existing  law 
as  to  defences  under  the  circumstances  mentioned  in  it.  It  was 
not  intended  to  alter  the  substantial  rights  of  the  parties,  but 
only  to  introduce  such  modifications  into  the  modes  of  protecting 
them  as  Avere  rendered  necessary  by  the  provisions  of  the  pre- 
ceding section  requiring  the  real  party  in  interest  in  most  cases 
to  be  the  plaintiff.  Taking  the  two  sections  together,  the  plain 
interpretation  of  them  is  :  The  assignee  of  a  thing  in  action  must 
sue  upon  it  in  his  own  name,  but  this  change  in  the  practice 
shall  not  work  any  alteration  of  the  actual  rights  of  the  parties  ; 
the  defendants  are  still  entitled  to  the  same  defences  against  the 
assignee  who  sues,  which  they  would  have  had  if  the  former  rule 
had  continued  to  prevail,  and  the  action  had  been  brought  in  the 
name  of  the  assignor,  but  to  no  other  or  different  defences.  In 
other  words,  the  section  must  be  interpreted  as  though  it  read  as 
follows:  "In  the  case  "of  the  assignment  of  a  thing  in  action, 
the  action  of  the  assignee  shall  be  without  prejudice  to  any  set- 
off or  other  defence  [now  allowed  or]  existing  at  the  time  of  or 
before  notice  of  the  assignment,  which  would  have  been  avail- 
able to  the  defendant,  had  the  action  been  brought  in  the  name 
of  the  assignor."  This  construction  is  now  firmW  and  universally 
established. 1 

§  157.  As  the  pre-existing  rule  is  thus  re-affirmed,  a  full  dis- 
cussion of  the  statutory  provision  requires  an  examination  and 
statement  of  that  rule  itself.  In  the  first  place,  the  general 
doctrine  is  elementary  that  the  purchaser  of  any  thing  in  action, 
not  negotiable,  takes  the  interest  purchased  subject  to  all  the 
defences  legal  and  equitable  of  the  debtor  who  issued  the  obliga- 
tion or  security.  That  is,  when  the  original  debtor,  the  obligor 
on  the  bond,  or  the  promisor,  in  whatever  form  his  promise  is 

1  Beckwith  v.  Union  Bank,  9  N.  Y.  211,  212,  per  Johnson  J.  ;  Myers  r.  Davis,  22 
N.  Y.  489,  490,  per  Denio  J. 


EQUITIES    BETWEEN   ASSIGNOR    AND    ASSIGNEE.  187 

made,  if  it  is  not  negotiable,  is  sued  b}'  the  assignee,  the  defences 
legal  and  equitable  which  he  had  at  the  time  of  the  assignment, 
or  at  the  time  when  notice  of  it  was  given,  against  the  original 
creditor,  avail  to  him  against  the  substituted  creditor.^  This  doc- 
trine has  been  applied  to  all  kinds  of  defences  as  well  as  to  set-off, 
and  to  all  forms  of  contract  not  negotiable  :  as,  for  example,  in 
an  action  on  a  bond  and  mortgage  by  the  assignee,  the  defence 
that  the  bond  and  the  mortgage  collateral  thereto  were  given  on 
consideration  that  the  obligee  should  perform  certain  covenants 
contained  in  an  agreement  between  the  parties  which  was  set  out, 
and  that  he  had  wholly  failed  to  perform  the  same,  was  held 
good  ;  ^  in  an  action  brought  on  a  warehouseman's  receipt,  the 
same  being  held  not  negotiable  ;  ^  in  an  action  by  an  assignee  for 
the  benefit  of  creditors;^  and  in  an  action  to  compel  a  specific 
performance,  brought  by  the  assignee  of  the  vendee,  under  a  con- 
tract for  the  sale  of  lands,  although  the  vendee  was  in  posses- 
sion.^ 

§  158.  The  doctrine  is  not  confined,  however,  in  its  operation 
to  the  case  of  the  debtor  —  the  promisor  in  the  thing  in  action  — 
setting  up  a  defence  to  an  action  brought  by  an  assignee  upon 
the  demand  itself  to  enforce  the  collection  or  performance  thereof; 
it  applies  also  to  the  second  and  subsequent  assignees  of  a  non- 
negotiable  thing  in  action,  although  transferred  to  the  purchaser 
and  holder  for  full  value,  and  without  notice,  if  there  were  equi- 
ties subsisting  between  the  original  assignor  and  his  immediate 
assignee  in  favor  of  the  former.  .  If  the  owner  and  holder  of  a 
thing  in  action  not  negotiable  transfers  it  to  an  assignee  upon 
condition,  or  subject  to  any  reservations  or  claims  in  favor  of  the 
transferrer,  although  the  instrument  of  assignment  be  absolute  on 
its  face,  this  immediate  assignee,  holding  in  it  a  qualified  and 

1  Ingraliam  v.  Disbrougli,  47  N.  Y.  421 ;  the  notice."    Commercial  Bank  v.  Colt,  15 

Andrews  v.  Gillespie,  47  N.  Y.  487  ;  Busli  Barb.   506  ;  Ainslie  r.  Boynton,  2  Barb. 

V.  Lathrop,  22  N.  Y.  535,  538,  per  Denio  258  ;  Wood  v.  Perry,  1  Barb.  114  ;  West- 

J. ;    Blydenburgh   v.    Thayer,    3    Keyes,  ern    Bank    v.   Sherwood,  29  Barb.  388  ; 

293  ;  Callanan  v.  Edwards,  32  N.  Y.  483,  Reeves  v.  Kimball,  40  N.  Y.  299. 
486,  per  Wright  J.,  who  thus  states  the  "^  Western  Bank  y.  Sherwood,  29  Barb, 

rule  :  "  An   assignee  of  a  chose  in  action  383. 

not  negotiable  t^ikes  the  thing  assigned,  »  Commercial  Bank  v.  Colt,  15  Barb. 

subject  to  all  the  rights  whicli  the  debtor  506. 

had  acquired  in  respect  thereto  prior  to  *  Maas  v.  Goodman,  2  Hilt.  275;     Ma- 

the  assignment,  or  to  the  time  notice  was  rine  Bank  v.  Jaunccy,  1  Barb.  486. 
given  of  it,  when  there  is  an  interval  be-  5  Reeves  v.  Kimball,  40  N.  Y.  299. 

tween  the  execution  of  the  transfer  and 


188  CIVIL   REMEDIES. 

limited  ]iroperfy  and  interest,  cannot  convey  a  greater  pro])erty 
and  interest  tlian  he  himself  holds  ;  and  if  he  assumes  to  convey 
it  to  a  second  assignee  by  a  transfer  absolute  in  form,  and  for  a 
full  consideration,  and  witliout  any  notice  on  the  part  of  such 
purchaser  of  a  defect  in  the  title,  this  second  assignee  nevcithe- 
less  takes  it  subject  to  all  the  equities,  claims,  and  rights  of  the 
original  owner  and  first  assignor.  The  doctrine  of  so-called 
'"'- latent  e(piities,"  which  has  received  some  judicial  support, — 
that  is,  the  doctrine  that  the  equities  of  the  original  assignor, 
under  the  circumstances  thus  stated,  are  latent  and  cannot  pre- 
vail against  the  title  of  the  second  assignee,  —  is  unsound  ;  it  is  an 
attempt  to  extend  the  peculiar  qualities  of  negotiable  paper  to 
things  in  action  not  negotiable,  and  destroys  the  fundamental 
distinction  between  the  two  classes  of  negotiable  and  non-nego- 
tiable demands.^ 

§  159.  A  few  illustrations  of  this  rule  will  serve  to  show  its 
true  meaning,  and  the  extent  of  its  application.  The  holder  of 
a  Ijond  and  mortgage  for  -iJ^HOO  assigned  and  delivered  them  to 
secure  an  indebtedness  of  $270,  the  assignee  giving  back  a 
written  undertaking  to  return  the  same  upon  being  paid  that 
amount.  This  assignee  afterwards  transferred  the  securities  to  a 
second,  and  he  to  a  third  assignee,  the  latter  paying  full  value, 
and  having  no  notice  of  any  outstanding  claims  or  defects  in  the 
title.  The  original  owner  tendered  to  tliis  assignee  the  $270  and 
interest  thereon,  and  demanded  a  return  of  the  bond  and  mort- 
gage. Upon  refusal,  he  brought  an  action  to  compel  such 
return  ;  and  it  was  held  by  the  New  York  Court  of  Appeals, 
after   a   most    exhaustive    discussion,  that   he    should   recover.^ 


'  Bush  V.  Lathrop,  22  N.  Y.  535 ;  An-  effect  are  ohiter  dicta,  while  a  large  num- 

derson  r.  Nicliolas,  28  X.  Y.  600,  approved  ber  of  direct  decisions  neces^^ariiy  involv- 

by  Woodruff  J.  in  Reeves  v.  Kimball,  40  ing  the  question  are  opposed  to  the  doc- 

N.  Y.  311;  Mason  t;.  Lord,  40  N.  Y.  476,  trine.     I   would   add   that   the  course   of 

487,  per  Daniels  J.  ;  Williams  v.  Thorn,  adjudications  in  reference  to  the  sale  of 

11 1'aifre,  459  ;  McNeil  v.  Tenth  Nat.  Bank,  goods  and  chattels  by  conditional  vendees 

55  Barb.  59,  68  ;  Schafer  v.  Reilly,  50  N.  Y.  who  have  been  put  in  possession,  and  who 

67;  Manglesr.  Dixon,  3  H.of  L.  Cas.  702.  have   been    lield    unable   to    transfer  an 

-  Bush  V.  Lathrop,  22  N.  Y.  535.     The  absolute  title  to  bona  fide  purchasers  for 

opinion  of  Denio  J.  is  a  most  able  review  value.fuUy  supports  the  reasoning  and  con-  " 

of  all  the  authorities  which  seem  to  sus-  elusions  of  Judge  Denio.    There  is  no  pos- 

tain   the   doctrine   that   certain    so-called  sible  ground  of  valid  distincticm  between 

"  latent  ef/iiitles  "  are  not  protected  against  the  transfer  of  a  thing  in  action  when  the 

an   assignment.     He   shows  that  all  the  transferrer  appears   to    be  clothed    with 

expressions   of  judicial   opinion  to   that  the  complete  ownership,  but  is  actually 


EQUITIES  BETWEEN   ASSIGNOR    AND    ASSIGNEE.  189 

Certificates  of  stock  being  wrongfully  taken  from  the  owner  and 
sold  to  the  defendant,  it  was  held  that  the  latter  acquired  no 
better  or  higher  title  than  that  held  by  his  immediate  transferrer, 
—  the  one  who  wrongfully  converted  the  stock,  —  and  that  the 
original  owner  could  recover  the  value  of  the  securities  with 
interest ;  but  the  decision  was  jjartly  placed  upon  the  special 
circumstances  of  the  transfer,  which  deprived  the  defendant 
of  the  character  and  position  of  a  bona  fide  purchaser.^  The 
lessee  of  premises  assigned  the  lease  by  an  instrument  valid 
on  the  face,  but  the  transfer  was  in  fact  given  as  security 
for  an  usurious  loan  made  to  him  by  the  assignee.  This  lease 
was  afterwards  transferred  by  the  assignee,  passed  through  divers 
hands,  and  was  finall}^  purchased  by  the  defendant,  who  knew 
that  the  first  transfer  was  intended  as  a  security  for  a  loan,  but 
who  had  no  knowledge  nor  notice  of  the  usurious  taint  which 
affected  the  loan,  and  who  paid  full  value  as  the  consideration  of 
the  transfer  to  himself.  Subsequent  to  the  original  assignment 
by  the  lessee,  but  before  the  transfer  to  the  defendant,  the  plain- 
tiffs recovered  a  judgment  against  such  lessee,  which  was  regu- 
larly entered  and  docketed,  and  the  lessee's  interest  in  the 
premises  leased  and  in  the  lease  itself  was  sold  on  execution, 
bought  in  by  the  plaintiffs,  and  a  sheriff's  deed  of  such  interest 
was  delivered  to  them,  which  deed,  however,  was  executed  after 
the  assignment  to  the  defendant.  The  plaintiffs  thereupon  com- 
menced an  action  to  recover  possession  of  the  leased  premises, 
and  to  avoid  the  transfer  of  the  lease  to  the  defendant  on  account 
of  the  usury  which  affected  and  nullified  the  first  assignment 

not,  and  the  transfer  of  a  chattel  by  a  made  no  allusion  to  the  defendant's  want 
person  similarly  situated  and  having  all  of  good  faith.  Another,  Denio  J.,  dwelt 
the  outward  indicia  of  perfect  title.  See  upon  the  facts  which  showed  the  bad 
Ballard  v.  Burgett,  40  N.  Y.  314,  and  the  faith,  but  was,  at  the  same  time,  very 
cases  cited.  careful  to  protest  against  any  inference 
1  Anderson  v.  Nicholas,  28  N.  Y.  600.  from  his  course  of  argument  to  the  eflPect 
On  account  of  the  peculiar  facts  referred  that,  if  the  purchase  had  been  in  good 
to  in  the  text,  which  prevented  the  defend-  faith,  the  assignee  would  have  been  pro- 
ant  from  relying  upon  the  defence  of  bona  tected.  The  third  judge  who  delivered 
Jides,  tins  case  cannot  be  regarded  as  a  an  opinion,  Hogeboora  J.,  seems  to  have 
direct  authority  for  the  doctrine  of  the  adopted  the  view  of  the  case  taken  by 
text.  One  of  the  judges,  Davies  J.,  Davies  J.  On  the  whole,  although  the/«c« 
bases  his  judgment  entirely  upon  the  o/T/uc? /«;>/*  was  an  element  in  the  decision, 
ground  that  the  assignee  could  under  no  the  doctrine  laid  down  applies  to  all  cases 
circumstances  acquire  a  better  title  to  a  of  transfer,  those  in  good  faith  as  well  as 
non-negotiable  thing  in  action  than  that  those  in  bad  faith, 
possessed  by  his  immediate  assignor,  and 


190  CIVIL   REMEDIES. 

matle  by  the  lessee  to  lii.s  immediate  assignee.  The  New  York 
Court  of  Appeals,  following  the  doctrine  of  the  decisions  quoted 
above,  held  that  the  action  could  be  maintained;  that  the  lessee 
might  have  set  aside  the  transfer  from  himself  on  account  of  the 
usury  which  tainted  it ;  that  the  subsequent  assignees,  including 
the  defendant,  succeeded  to  all  the  rights,  and  were  subjected  to 
all  the  disabilities  possessed  by  and  imposed  upon  the  person  who 
transferred  the  security  to  them,  —  the  first  assignee  ;  and,  finally, 
that  the  judgment  creditors  of  the  lessee  were  clothed  with  his 
rights  and  powers  in  the  matter.^ 

§  160.  The  principle  thus  settled,  and  the  cases  which  support 
it,  are  entirely  consistent  Avith  another  doctrine  that  has  lately 
been  approved  and  established  by  the  same  distinguished  court, 
namely,  the  doctrine  of  estoppel  as  applied  to  the  transfer  of  cer- 
tain species  of  things  in  action  which,  in  the  customary  practice 
of  business  men,  have  acquired  a  quasi  negotiable  character. 
The  doctrine,  as  thus  invoked  by  the  court,  may  be  stated  as 
follows :  The  owner  of  certain  kinds  of  things  in  action  not 
technically  negotiable,  but  which,  in  the  course  of  business  cus- 
toms, have  acquired  a  semi-negotial)le  character  as  a  matter  of 
fact,  may  assign  or  part  with  them  for  a  special  purpose,  and  at 
the  same  time  may  clothe  the  assignee  or  person  to  whom  they 
have  been  delivered  with  such  apparent  indicia  of  title,  and  in- 
struments of  complete  ownership  over  tliem,  and  power  to  dispose 
of  them,  as  to  eatop  himself  from  setting  up  against  a  second 
assignee  to  whom  the  securities  liave  been  transferred  in  good 
faith  and  for  value,  the  fact  that  the  title  of  the  first  assignee  or 
holder  was  not  absolute  and  perfect.  After  some  conflict  of 
opinion  in  the  lower  courts,  the  New  York  Court  of  Appeals  has 
recently  applied  the  foregoing  doctrine  to  the  customary  mode  of 
dealing  with  certificates  of  stock.  It  holds  that  if  the  owner 
of  such  stock  certificates  assigns  them  as  collateral  security,  or 
pledges  them,  or  puts  them  into  the  hands  of  another  for  any 
purpose,  and  accompanies  the  delivery  by  a  blank  assignment 

1  Mason   v.   Lord,  40  N.  Y.  476,  487.  Bush    v.  Latlirop   is  reafflrmod,  and    its 

The  doctrine  is  directly  sustained  in  the  principle  pronounced  to  be  "  well  settled." 

following  more  recent  cases  :  Schafer  v.  The  result  of  these  authorities  is  to  limit 

Reilly,  50  N.  Y.  61,  67;  Reeves  v.  Kim-  the   decision    in    Moore   r.    Metropolitan 

ball,   40  N.   Y.   299;    Ingraham   v.    Dis-  Nat.  Bank,  infra,  and  to  confine  it  to  the 

borough,  47  N.  Y.  421 ;  Cutts  v.  Guild,  57  doctrine  as  laid  down  in  McNeil  v.  Tenth 

N.  Y.  229,  232,  233.      In  the  last  case  Nat.  Bank,  infra. 


ASSIGNMENT   OF   STOCK   CERTIFICATES. 


191 


and  power  of  attorney  to  transfer  the  same  in  the  nsnal  form, 
signed  by  himself,  and  this  assignee  or  pledgee  wrongfully  sells 
them  to  an  innocent  purchaser  for  value  in  the  regular  course  of 
business,  such  original  owner  is  estopjjed  from  asserting,  as  against 
this  purchaser  in  good  faith,  his  own  higher  title  and  the  want 
of  actual  title  and  authority  in  his  own  immediate  assignee  or 
pledgee.  This  principle,  thus  applied  to  the  peculiar  state  of  facts 
described,  and  to  the  particular  kind  of  securities,  is  in  no  respect 
necessarily  antagonistic  to  the  general  doctrine  in  relation  to 
things  in  action  before  stated  in  the  text.  The  court  rested  its 
decision  exclusivel}'  upon  the  form  of  the  blank  assignment  and 
power  of  attorney  executed  b}-  the  assignor  and  delivered  to  the 
assignee,  which  clothed  him  with  all  the  apparent  rights  of  owner- 
ship which  are  recognized  by  business  men  in  their  usual  course 
of  dealing  with  like  securities,  as  sufficient  to  confer  a  complete 
title  and  power  of  disposition  upon  the  assignee.  The  decision 
was  nothing  more  than  the  application  of  the  doctrine  of  estoppel 
in  circumstances  to  which  it  had  not  before  been  applied.^ 


1  McNeil  V.  Tenth  Nat.  Bank,  46  N.  Y. 
325,  reversing  S.  C.  55  Barb.  59.  The 
Supreme  Court  lield  (I)  tiiat  certificates 
of  stock  were  in  no  respect  negotiable, 
and  (2)  tlie  rule  as  laid  down  by  Denio  J. 
in  Bush  i\  Lathrop.  The  law  of  estoppel 
was  not  invoked  nor  alluded  to.  In  the 
Court  of  Appeals  the  doctrine  of  latent 
equities  was  discussed  ;  the  decision  of  tlie 
court  in  Bush  '■.  Lathrop,  and  the  reason- 
ing of  Mr.  Justice  Denio,  were  expressly 
recognized  as  correct,  and  as  applicable  to 
all  cases  in  which  tlie  facts  do  not  warrant 
the  application  of  the  principle  of  estop- 
pel. Mr.  Justice  Rapallo,  in  his  able 
judgment,  does  not  discuss  the  rule  in 
relation  to  things  in  action  of  all  kinds  ; 
he  confines  himself  exclusively  to  the 
particular  species  of  security  then  before 
the  court,  —  certificates  of  stock  in  stock 
corporations ;  and,  while  he  does  not 
claim  for  tliem  absolute  negotiability,  he 
does  in  fact  render  them  indirectly  nego- 
tiable by  means  of  the  estoppel  which 
arises  upon  dealing  with  them  in  the 
manner  described,  which  is  the  mode 
universally  prevalent  among  business 
men.  In  respect  to  the  opinion  of  Denio 
J.  he  says  (p.  339)  :  "  But  in  no  part  of 
his  learned  and  exhaustive  opinion  does 


he  seek  to  apply  its  doctrine  to  shares  in 
corporations  or  other  personal  property 
the  legal  title  to  which  is  capable  of  lieing 
transferred  by  assignment;  and  the  free 
transmission  from  hand  to  hand  is  essen- 
tial to  the  prosperity  of  a  commercial 
people.  The  question  of  estoppel  does 
not  seem  to  have  been  considered  in  that 
case,  and  perhaps  it  would  not  have  been 
appropriate."  He  expressly  approves  the 
rule  frequentl}'  laid  down  as  to  chattels, 
and,  while  invoking  the  aid  of  estoppel,  is 
very  careful  to  state  the  narrow  limits 
within  which  it  may  be  used,  and  the 
kind  of  facts  which  are  necessary  to  its 
use.  He  says  (pp.  329,  330) :  "  Simply 
intrusting  the  possession  of  a  chattel  to 
anotlier  as  depositary,  pledgee,  or  other 
bailee,  or  even  under  a  conditional  execu- 
tory coutract  of  sale,  is  clearly  insufficient 
to  preclude  the  real  owner  from  reclaim- 
ing his  property  in  case  of  an  unauthor- 
ized disposition  by  the  person  so  intrusted. 
(Ballard  v.  Burgett,  40  N.  Y.  314.)  The 
mere  possession  of  chattels,  by  wliatever 
means  acquired,  if  there  be  no  other  evi- 
dence of  property  or  authority  to  sell 
from  the  true  owner,  will  not  enable  the 
possessor  to  give  good  title.  But  if  the 
owner    intrusts    to  another   not  merely 


192  CIVIL   REMEDIES. 

§  101,  This  decision,  and  the  rule  which  it  establishes  in  ref- 
erence to  certificates  of  stock,  are  doubtless  in  the  interests  of 
modern  business  methods.  For  several  years  these  certificates  of 
stock,  with  an  assignment  in  blank  and  a  blank  power  of  attorney 
to  affect  their  surrender  and  transfer,  have  been  practically  re- 
garded by  business-men  as  negotiable  instruments ;  they  have 
been  used,  transferred  from  hand  to  hand,  and  assigned  by  de- 
livery, in  exactly  the  same  manner  as  bills  and  notes  payable  to 
bearer,  and  millions  of  property  are  constantly  ventured  upon 
their  use.  It  was  a  matter  of  absolute  necessity  that  the  courts 
should  pronounce  these  securities  practieally  negotiable ;  a  con- 
trar}^  ruling  would  have  interrupted  and  jeoparded  the  whole 
financial  system  of  the  country.  It  would  have  been  well  if  the 
court  had  boldly  met  the  question  face  to  face,  and  had  expressly 
held  these  securities  to  be  negotiable  to  all  intents  and  purposes. 
This  course  of  decision  would  have  produced  no  unexpected  in- 
terference with  other  general  doctrines,  and  it  has  a  precedent  in 
the  acts  of  the  American  courts  holding  that  municipal  and  cor- 
poration coupon  bonds  of  the  ordinary  form  are  negotiable.  As 
the  court  did  not  pursue  this  course,  it  accomplished  the  same 
purpose  by  resorting  to  the  doctrine  of  estoppel ;  and  I  repeat, 
that  when  confined  to  these  peculiar  forms  of  securities  which 
had  been  made  practically  negotiable  by  the  course  of  business, 
the  judgment  and  its  ratio  decidendi  do  not  affect  the  general 
principle  in  relation  to  the  transfer  of  things  in  action  which 
has  been  stated  and  illustrated  in  preceding  paragraphs.  But  the 
same  court  has,  in  a  still  later  case,  gone  far  beyond  both  the 

tlie  possession  of  the  property,  but  also  622,  623,  the  doctrine  of  estoppel  was 
written  evidence  over  his  own  signature  applied  to  the  corporation  itself  whose 
of  title  thereto,  and  of  an  unconditional  stock  had  been  transferred  in  good 
power  of  disjiosition  over  it,  tiie  case  is  faitli,  and  in  tiie  usual  manner,  to  the 
vastly  different."  The  following  would  plaintiff.  McNeil  v.  Tenth  Nat.  Hank, 
seem  to  be  tlie  general  rule  as  thus  ap-  siij)ra,  and  Leitch  v.  Wells,  48  N.  Y.  585, 
proved  by  tlie  court :  If  the  owner  of  a  were  lield  to  be  controlling  ;  and  Ledwich 
thing  in  action  delivers  it  to  an  assignee  v.  McKim,  53  N.  Y.  307,  was  said  not  to 
for  a  special  purpose,  with  a  simple  writ-  conflict  in  any  manner.  It  is  decided  in 
ten  assignment  thereof,  even  tliougli  abso-  Nevada  that  certificates  of  stock  in  the 
lute  on  the  face,  this  is  not  enough  to  ordinary  form  are  not  negotiable  iustru- 
raise  tiie  estoppel;  but  if,  with  this  as-  ments,  so  tiiat  when  such  certificates  had 
signment,  the  owner  gives  a  furtlier  writ-  been  stolen  and  transferred  in  the  custom- 
ing containing  "an  unconditional  power  arj' manner  to  a  /joh«  yzJc  purchaser  for 
of  disposition  "  over  the  thing  in  action,  value,  the  latter  acquired  no  title  as 
then  the  estoppel  may  be  invoked.  In  against  the  owner.  Bercich  v.  Marye, 
Holbrook  v.  N.  J.  Zinc  Co.,  57  N.  Y.  610,  9  Nev.  312. 


EQUITIES   BETWEEN    ASSIGNOR   AND    ASSIGNEE.  193 

conclusions  and  the  reasoning  of  its  judgment  in  McNeil  v.  Tenth 
National  Bank,  and  has  virtually  obliterated  the  distinction  be- 
tween negotiable  and  non-negotiable  things  in  action,  at  least  so 
far  as  the  relations  between  assignors  and  assignees  of  them  are 
concerned.  The  doctrine  of  estoppel,  which  had  been  used  to 
protect  the  customary  modes  of  transacting  business  with  certifi- 
cates of  stock,  is  now  extended  to  all  species  of  things  in  action, 
and  the  effect  of  an  estoppel  is  declared  to  be  produced  from  a 
mere,  assignment  of  the  security^  absolute  07i  its  face,  executed  by 
the  original  owner,  and  delivered  to  his  assignee.  In  short,  when- 
ever the  owner  of  a  non-negotiable  thing  in  action  delivers  the 
same  to  another  person,  and  accompanies  the  delivery  by  an 
assignment  thereof,  absolute  on  its  face,  and  this  person  transfers 
the  same  to  a  purchaser  for  value  who  relies  upon  the  apparent 
ownership  created  by  the  written  assignment,  and  has  no  notice 
of  any  thing  limiting  that  apparent  title,  the  original  owner  is  es- 
topped from  asserting  as  against  such  purchaser  any  equities  exist- 
ing between  himself  and  liis  immediate  assignee,  and  any  interest 
or  property  in  the  security  which  he  may  have,  notwithstanding 
the  written  transfer.  The  Court  of  Appeals,  in  reaching  this 
conclusion,  expressly  overrules  the  decision  made  upon  the  facts 
involved  in  Bush  v.  Lathrop ;  but  at  the  same  time  declares  that 
it  does  not  intend  to  shake  the  general  doctrine  controlling  the 
transfer  of  non-negotiable  things  in  action  upon  which  that  de- 
cision is  based.  It  is  plain,  however,  that  the  ancient  and,  as  it 
was  supposed,  well-settled  doctrine  is  substantially  abrogated  by 
this  last  application  of  the  principle  of  estoppel.  The  estoppel  is 
made  to  arise  from  a  mere  naked  transfer  in  writing,  absolute  in 
form  ;  the  ratiotiale  of  the  decision  is  the  apparent  ownership 
thus  bestowed  upon  the  assignee  ;  and  these  elements  of  the 
judgment  will  clearly  apply  to  so  many  cases  that  things  in  action 
are  practically  rendered  negotiable  in  their  nature  as  between  the 
series  of  successive  holders,  —  the  assignors  and  assignees.  This 
point  being  attained,  it  will  be  a  short  and  easy  step  to  apply 
the  doctrine  of  estoppel  to  the  debtor  himself,  —  the  obligor  or 
promisor  who  utters  the  security.  If  negotiability  is  produced 
by  means  of  estoppel  between  the  assignor  and  assignee,  arising 
from  the  fact  and  form  of  a  transfer  from  one  to  another,  by 
parity  of  reasoning  the  debtor  may  be  regarded  as  estopped  by 
the  fact  and  form  of  his  issuing  the  undertaking  and  delivering 

13 


194  CIVIL   REMEDIES. 

it  to  the  first  holder,  and  thus  creating  an  apparent  liability 
against  himself.  In  short,  there  is  exactly  the  same  reason  for 
holding  the  debtor  estopped  from  denying  his  liability  upon  a 
written  instrument  which  apparently  creates  an  absolute  liability, 
when  that  instrument  has  passed  into  the  hands  of  a  purchaser 
who  has  no  notice  of  the  actual  relations  between  the  original 
parties,  as  for  holding  an  assignor  estopped  from  denying  the 
completeness  of  a  transfer  made  by  him  absolute  on  the  fiice. 
This  result,  if  reached,  would  render  all  things  in  action  practi- 
cally u  ego  liable.' 

§  162.  As  the  result  of  adjudications  of  which  the  foregoing 
are  examples,  the  rules  of  the  law  as  established  independently 
of  the  codes  may  be  summed  up  in  the  following  manner :  (1) 
All  defences,  either  legal  or  equitable,  which  existed  in  favor  of 
the  debtor  himself  against  the  original  creditor  at  the  time  of  the 
assignment,  or  of  notice  to  him  of  the  assignment,  of  a  non- 
negotiable  thing  in  action,  avail  to  him  against  the  assignee  who 
seeks  to  enforce  the  demand  against  such  debtor ;  (2)  When 
the  owner  and  holder  of  a  non-negotiable  thing  in  action  trans- 
fers it  to  an  assignee  for  a  special  puipose  — such  as  security  for 
a  loan,  and  the  like  —  by  an  assignment  absolute  on  its  face,  but 


1  Moore   v.   Metropolitan   Nat.  Bank,  Bush  v.  Lathrop,  and  with  tlie  decision 

55  N.  Y.  41.     Moore,  the  owner  of  a  cer-  made  on  the  facts  of  that  case.     Grover  J. 

tificate   of  indebtedness   of  S  10,000,   de-  does  not  allude  to  the  careful  distinction 

livered  the  same  to  Miller  for  a  certain  drawn  by  Rapallo  J.  between  the  circum- 

special   purpose,    but    not    intending    to  stances  of  the  two  cases,  nor  his  approval 

transfer  any    property    therein ;    in   fact,  of    the   general   doctrine   and   course   of 

ISIiller  was  to  procure  the  same  to  be  dis-  reasoning   contained    in    Judge    Denio's 

counted,  and  to  account  for  the  proceeds,  opinion.     Nor  does  Judge  Grover  make 

or  else   return    the   certificate.      Moore,  the  slightest  allusion  to  tiie  narrow  limits 

however,  gave  Miller  the  following  writ-  placed   by    Rapallo   J.  upon    the    use  of 

ing,  indorsed   on  the  instrument  :  "  For  the  estoppel ;  namely,  to  those  cases  in 

value  received,  I  hereby  transfer,  assign,  which  the  assignor,  by  a  written  instru- 

and  set  over  to  Isaac  Miller  the  within  ment  over  his  signature,  confers  not  only 

described  amount,  say  ten  thousand  dol-  tiie   apparent   title,   but    the   unconditional 

lars.     Levi  ]Moore."     Miller  assigned  the  poicer    of  disposition    over    tlie   security, 

certificate  to  the  defendant  for  value,  who  While   the  judgment    of    Rapallo  J.  in 

took  it  on  tlie  faith  of  this  written  assign-  McNeil  v.  Tenth  Nat.  Bank  was  guarded 

ment,  without  notice  of  the  true  relations  and   cautious,  and  eminently  proper   in 

between  Moore  and  Miller.     The  action  respect  to  the  peculiar  class  of  securities, 

was  brought  to  recover  possession  of  the  that  of  Grover  J.  is,  I  think,  opposed  to 

certificate.     The  court  held,  per  Grover  J.  doctrines  the  most  elementary,  and  can 

(pp.  46-4y),  that  the  case  is  controlled  by  only   produce   confusion  in  a  branch  of 

that  of  McNeil  v.  Tenth  Nat.  Bank,  and  the  law  which  had  been  settled  for  gener- 

that  the  judgment  in  the  latter  is  incon-  ations. 
sistent  with  the  reasoning  of  Denio  J.  in 


SET-OFF    AGAINST   THE   ASSIGNEE.  195 

as  between  himself  and  his  assignee  retains  an  interest  in  or 
claim  upon  the  demand,  and  this  assignee  assumes  to  transfer  the 
same  absolutely  to  a  second  assignee  who  purchases  in  good  faith 
without  notice  and  for  value,  the  first  assignee  in  fact  transfers 
no  higher  title  than  he  possesses,  and  the  second  assignee  takes 
the  thing  in  action  subject  to  the  equities  and  claims  of  the 
original  assignor  ;  but  (3)  in  the  State  of  New  York  a  modifica- 
tion of  this  second  rule  has  been  introduced  in  very  recent  deci- 
sions, and  in  pursuance  thereof,  if  the  original  owner  accompanies 
the  delivery  of  the  thing  in  action  with  a  written  assignment 
thereof  absolute  in  form,  and  therefore  apparently  vesting  the  com- 
plete ownershijD  in  his  immediate  assignee,  an  innocent  purchaser 
for  value  from  the  latter  is  protected  against  any  claims,  demands, 
or  equities  existing  in  favor  of  the  first  assignor ;  the  latter  is 
estopped  from  asserting  his  true  right  and  property  in  the  security. 
This  modification,  which  was  at  first  confined  to  certificates  of 
stock  transferred  by  means  of  the  customary  blank  assigmnent 
and  power  of  attorney,  has  been  extended  to  all  things  in  action. 
§  163.  What  construction  has  been  put  by  the  courts  upon 
the  provision  of  the  codes  embodying  and  reaffirming  these  gen- 
eral rules?  I  shall  consider  in  the  first  place  the  effect  of  this 
provision  upon  the  defence  of  set-off.  No  substantial  change  has 
been  made  in  the  rights  of  the  several  parties.  The  assignee 
takes  the  demand  assigned  subject  to  all  the  rights  which  the 
debtor  had  acquired  prior  to  the  assignment,  or  prior  to  the  time 
when  notice  was  given,  if  there  was  an  interval  between  the 
execution  of  the  transfer  and  the  notice  ;  but  he  cannot  be  prej- 
udiced by  any  new  dealings  between  the  original  parties  after 
notice  of  the  assignment  has  been  given  to  the  debtor.  When 
two  opposing  debts  exist  in  a  perfect  condition  at  the  same  time, 
either  party  may  insist  upon  a  set-off.  If  therefore  the  holder  of 
such  a  claim  already  due  and  payable  assign  the  same,  and  the 
debtor  at  the  time  of  this  transfer  holds  a  similar  claim  against 
the  assignor,  which  is  also  then  due  and  payable,  he  may  set  off 
his  debt  against  the  demand  in  the  hands  of  the  assignee.  If, 
however,  the  assignment  is  made  before  the  opposing  demand 
becomes  mature,  and  the  latter  does  not  thus  become  actually 
due  and  payable  until  after  the  transfer,  the  debtor's  right  of  set- 
off is  destroyed  by  the  mere  fact  of  the  assignment,  and  no  notice 
thereof  to  him  is  necessary  to  produce  that  effect.     The  following 


106  CIVIL    REMEDIES. 

special  rule  also  exists  under  the  peculiar  circumstances  men- 
tioned. If  an  insolvent  holder  of  a  claim  not  yet  matured 
assigns  the  same  before  maturity,  and  the  debtor  at  the  time  of 
this  transfer  liolds  a  similar  claim  against  the  assignor,  wliich  is 
then  due  and  payable,  his  right  of  set-off  against  the  assignee, 
when  the  hitter's  cause  of  action  arises,  is  preserved  and  pro- 
tected. This  latter  doctrine  is  based  upon  considerations  of 
equity,  and  is  intended  to  prevent  one  party  from  losing  his  own 
demand  on  account  of  the  insolvency  of  his  immediate  debtor, 
and  from  being  at  the  same  time  compelled  to  pay  the  debt  orig- 
inally due  from  himself  to  that  insolvent.  These  three  rules  existed 
prior  to  the  codes,. and  have  not  been  changed  by  the  provisions 
of  the  statute  under  consideration  .^ 

§  164.  The  true  extent  and  limitations  of  the  doctrine  will  best 
be  seen  in  its  application  to  the  facts  of  decided  cases.  On  the 
24th  August,  1850,  the  firm  of  W.  C.  &  A.  A.  Hunter,  having 
on  deposit  in  the  Union  Bank  the  sum  of  -$3,600,  made  a  general 
assignment  to  one  Beckwith.  At  the  time  the  bank  was  holder 
of  a  bill  of  exchange  which  was  indorsed  by  the  firm,  and  had 
been  discounted  by  the  bank  for  them.  This  bill  fell  due  on  the 
27tli  of  August,  and,  not  being  paid,  the  amount  of  it  was  charged 
against  the  firm  in  their  account  by  the  bank.  On  the  next  da}', 
the  28th,  the  assignee  for  the  first  time  notified  the  bank  of  the 

1  Beckwith   v.  Union  Bank,  9  N.  Y.  defence  is  not  a  counter-claim,  and  does 

211;    Myers    v.    Davis,   22    N.    Y.   489;  not  fall  within  the  prior  statutory  descrip- 

Martin    v.    Kunzmuller,   37   N.    Y.    396 ;  tion  of  set-off.     Frick  v.  White,'57  N.  Y. 

Blydenburgh  v.  Thayer,  3   Keyes,  293  ;  103.     Wliere  the  assignee  of  a  judgment 

34  How.  Pr.  88;  Watt   r.  Mayor,  &c.,  1  brought  an  action  in  the  nature  of  a  cred- 

Sandf  23;  Wells  v.  Stewart,  3  Barb.  40;  itor'ssuit  against  the  judgment  debtor  and 

Ogden  V.  Prentice,  33  Barb.  160 ;  Adams  others,  to  subject  certain  equities  to  the 

r.    Kodarmel,    19    Ind.    339 ;     Morrow's  lien  of  the  judgment,  and  the  debtor  in- 

Assignees  v.  Bright,  20  Mo.  298;  Walker  terposed  as  a  set-off  a  debt  due  him.self 

V.  McKay,  2  Mete.  (Ky.)  294;  Roberts  v.  from  the    assignor — the  judgment  cred- 

Carier,  38  N.  Y.  107  ;  Williams  r.  Brown,  itor  —  at  the  time  of  the  assignment,  it 

2   Keyes,  486 ;    Kobinson   v.   Howes,    20  was  held,  in  Ohio,  that  the  assignor  was 

N.  Y.  84;  ^laas  v.  Goodman,  2  Hilt.  275;  a  necessary  party,  and,  in  his  absence, 

Merrill    v.   Green,   55   N.    Y.    270,    274 ;  the  set-off  could  not  be  passed  up(jn  and 

Lathrop  i".  Godfrey,  6  N.  Y.  Sup.  Ct.  96.  allowed.     Gildersleeve    v.    Burrows,    24 

The  claim  set  up  by  the  defendant  must  Ohio  St.  204.     When  negotiable  paper  is 

be  a  valid  set-off.     In  an  action  by  the  transferred  after  maturity,  the  maker  has 

assignee  of  a  liquidated  demand  arising  the  same  right  to  avail  himself  of  a  claim 

out  of  contract,  —  a  debt,  —  the  defendant  against  the  assignor  as  a  set-off  that  he 

cannot    interpose    a    claim    against    the  would  have  if  the  demand  assigned  was 

assignor  for  unliquidated  damages  result-  not    negotiable.      Norton    v.   Foster,    12 

ing  from  the  breach  of  a  contract,  and  thus  Kans.  44, 47,  48 ;  Leavenson  v.  Lafontane, 

defeat  or  diminish  the  recovery.     Such  a  3  Kans.  523, 526. 


SET-OFF   AGAINST   THE    ASSIGNEE.  197 

assignment,  and  demanded  payment  of  the  sum  on  deposit  to  the 
firm's  credit,  which  was  refused.  The  assignee  brought  a  suit  to 
recover  the  debt,  and  the  bank  set  up  the  amount  due  on  the  bill 
of  exchange  as  an  offset.  It  was  held  by  the  Superior  Court  of 
New  York  City,  and  by  the  Court  of  Appeals,  that  the  demand 
in  favor  of  the  bank  could  not  be  set  off,  as  it  was  not  an  existing 
demand  payable  when  the  assignment  was  made  ;  and  that  no 
notice  was  necessary  by  the  assignee  to  protect  himself  against 
such  a  defence.  Notice  is  only  necessary  against  subsequent  acts 
and  dealings  of  the  debtor  with  an  assignor,  which  might  prej- 
udice the  rights  of  the  assignee,  such  as  payment.^  In  March, 
1855,  the  firm  of  Watrous  &  Lawrence  made  a  general  assign- 
ment to  one  Meyers,  having  before  that  time  sold  goods  to  the 
defendants  on  credit,  the  price  of  wdiich  did  not  become  due  and 
payable  until  September,  1855.  In  February  of  the  same  year 
W.  &  L.  had  ordered  from  the  defendants  a  quantity  of  articles 
—  patent  churns — to  be  manufactured  and  delivered  at  a  certain 
agreed  price.  There  had  been  such  mutual  dealings  between  the 
parties  before.  In  May,  1855,  the  defendants  completed  the 
churns,  and  tendered  them  to  the  assignee,  who  declined  to  receive 
them.  The  assignee  brought  an  action  for  the  price  of  the  goods 
when  it  became  due  in  September,  and  the  defendants  insisted 
upon  the  value  of  the  churns  as  an  offset.  The  defence  of  offset 
was  rejected.  The  court  held  that  the  situation  of  the  parties  at 
the  date  of  the  assignment  must  determine  the  question,  and 
unless  a  right  of  offset  existed  then^  it  could  not  arise  afterwards. 
It  did  not  exist  then,  because  neither  of  the  demands  had  ma- 
tured ;  but  it  was  enough  that  the  defendants'  claim  was  not  yet 


1  Beckwith  v.  Union  Bank,  9  N.  Y.  private  banker,  brouglit  on  a  note  given 

211,  212.     Johnson  J.  said  :  "  Nor  had  the  by  defendant  to  R.,  and  transferred  to  the 

bank    any   Hen    on    the   deposit   of   the  plaintiff.     At  the  time  of  the  assignment 

Hunters    which    woiUd   have    prevented  defendant  had  an  amount  of  money  on 

their  drawing  out  the  wliole  balance  of  deposit  with    R.,  —  more  than  sufficient 

cash  to  their  credit  on  the  24th  of  August,  to  pay  tlie  note;    and  this   demand  was 

This  right  passed  to  the  plaintiff  by  the  held  to  be  a  good  set-off  against  the  note, 

assignment ;  no  notice  was  necessary  to  on  the  authority  of  Smith  v.  Felton,  43 

protect  that  right  in  the  assignee,  except  N.  Y.  419.     The  claim  made  against  the 

only  that,  in  default  of  notice,  the  bank  defendant,  and  the  demand  set  up  by  him, 

might  have  so  dealt  as  by  its  subsequent  must  both  affect  him  in  the  same  capacity  ; 

acts  to  have   affected  his  rights."     See,  thus,  when  the  defendant  is  sued  for  a 

however.    Smith  v.   Fox,  48  N.  Y.   674,  personal  debt,   he  cannot  interpose  as  a 

which  was  an  action  by  an  assignee  for  set-off  a  demand  due  him  as  an  executor, 

the  benefit  of  the  creditors  of  one  R.,  a  Barlow  v.  Myers,  6  N.  Y.  Sup.  Ct.  183. 


198  CIVIL   REMEDIES. 

payable,  even  if  the  one  assigned  was  presently  due.^  If  the 
defendants'  demand  had  become  mature  at  the  time  of  the  assign- 
ment, it  could  undoubtedly  have  been  set  off  under  the  equitable 
rule  before  stated,  on  account  of  the  insolvency  of  W.  &  L.  A 
firm  made  a  general  assignment,  having  at  the  time  a  claim  due 
and  payable  against  the  defendants.  The  assignee  brings  an 
action  upon  the  demand,  and  the  defendants  set  up  a  note  of  the 
assignors  which  they  held  at  the  time  of  the  assignment,  but 
which  did  not  fall  due  until  after  that  date.  The  attempted  set- 
off was  rejected.  "  An  allowance  to  a  party  by  way  of  set-off  is 
always  founded  on  an  existing  demand  in  prcesenti,  and  not  on 
one  that  may  be  claimed  in  fiituroy  ^  In  an  action  by  an  assignee 
for  the  benefit  of  creditors,  the  defendant  relied  upon  a  judgment 
for  costs  recovered  by  himself  against  the  assignor  after  the 
making  of  the  transfer.  This  set-off  was  not  admitted,  and  it 
was  decided  that  no  notice  of  the  assignment  was  necessary  to  cut 
off'  such  a  defence.^  And  when  the  defendants,  in  an  action 
brought  upon  an  assigned  demand,  alleged  payments  which  they 
had  made,  subsequent  to  the  assignment,  as  sureties  for  the 
assignor  upon  a  liability  existing  prior  to  and  at  the  time  thereof, 
this  set-off  was  overruled  on  the  same  principle ;  for,  although 

1  Myers  v.  Davis,  22  N.  Y.  489,  490,  as  trustee  for  the  creditors  of  the  insolvent 

per  Denio  J.     After  stating  that  the  code  debtors.     The  rule  of  law  applicable  to 

has  not  made  any  change  in  the  substan-  the  case  is  stated  in  2  R.  S.  (of  N.  Y.)  p. 

tial   rights  of  the  parties,   he   proceeds:  354.  §  18  (8)."  ..."  The  rule  is  that,  when 

"  An  assignee  of  a  chose  in  action,  who  has  such  (rlaims  exist  in  a  perfect  condition  at 

given   notice   of  the  assignment,   is   not  the  same  time,  either  party   may  insist 

liable  to  be  prejudiced  by  any  new  deal-  upon  a  set-off.     So,  when  one  claiming  a 

ings  between  the  original  parties  to  the  set-off  has  a  demand  against  the  other, 

contract ;  but  he  takes  the  contract  as-  presently  payable,  and  the  other  party  is 

signed,  subject  to  all  the  rights  which  the  insolvent,  the  former  may  claim  to  have 

debtor  had  acquired  prior  to  the  assign-  the  set-off  made,  tliough  the  demand  of 

ment,  or  to  the  time  notice  was  given  of  his  adversary  against  him  has  not  become 

it,  when  there  is  an  interval  between  the  payable.      But   if,  before  the  demand  of 

execution  of  the  transfer  and  tlie  notice,  the   party    claiming  the   set-off  becomes 

...  If  the  defendants  had  completed  [the  mature,  the  opposite  claim  has  been  as- 

nianufacture]  before  the  assignment,  the  signed,   whether  the  assignment   carries 

right  to  an  assignment  would   have   at-  the  legal  or  only  the  equitable  title,  the 

tached,  of  which  the  defendants  would  not  right  of  set-off  no  longer  exists.     This  is 

have  been  deprived  by  any  act  of  W.  &  the  present  case ;  and  the  set-off  cannot, 

L. ;  but,  unfortunately  for  the  defendants,  in  my  opinion,  be  claimed ;"  citing  Chance 

no  debt  had  arisen  in  their  favor  when  y.  Isaacs,  5  Paige,  592 ;  Bradley  v.  Angell, 

W.  &   L.  failed  and  made  their  assign-  3  N.  Y.  475,  493. 

ment ;  and  when  a  debt  afterwards  came  -  Martin    v.    Kunzmuller,    37     N.    Y. 

into  existence  by  the  completion  of  the  396  ;  Watt  v.  The  Mayor,  &c.,  1  Sandf. 

work,  the  demand  against  the  defendants  23  ;  Wells  v.  Stewart,  3  Barb.  40. 

had  become  the  property  of  the  plaintiff  ^  Ogden  v.  Prentice,  33  Barb.  160. 


SET-OFF    AGAINST    THE    ASSIGNEE.  199 

there  was  a  liability  which  might  result  in  a  debt,  there  was  no 
existing  debt  until  the  payment  had  actually  been  made.^  In 
another  action  by  an  assignee  the  defendant  insisted  that  a  similar 
set-off  arising  from  his  payment  as  surety  for  the  assignor,  made 
under  the  same  circumstances  as  the  last,  should  Vje  allowed  as 
within  the  equitable  rule  on  account  of  the  assignor's  insolvency. 
The  set-off  was  rejected,  however,  because  there  was  no  existing 
indebtedness  in  favor  of  the  defendant  against  the  assignor  at 
the  date  of  the  assignment.  Such  a  present  indebtedness  is 
indispensable,  whether  the  case  is  to  be  governed  by  the  ordinary 
rule,  or  whether  the  equitable  doctrine  based  upon  the  assignor's 
insolvency  is  relied  upon.^  When  a  negotiable  promissory  note 
is  assigned  before  it  becomes  due,  the  maker  thereof  cannot  off- 
set against  the  assignee  a  claim  existing  against  the  original  payee 
and  assignor  of  the  note,  although  the  assignee  have  notice  of 
such  claim  at  and  before  the  time  of  the  transfer  to  him  ;  there  is 
no  case  for  the  set-off  between  the  original  parties  at  the  date  of 
the  assignment,  because  the  demands  are  not  then  matured,  and 
the  notice  given  to  the  assignee  is  not  of  any  existing  legal 
defence.^  There  being  no  possibility  of  setting  off  a  claim  of 
damages  arising  from  a  tort  or  fraud  against  a  demand  growing 
out  of  contract,  if  two  such  opposing  claims  exist  and  are  in  suit, 
and  the  creditor  in  the  contract  assigns  his  cause  of  action,  which 
is  afterwards  merged  in  a  judgment  in  favor  of  the  assignee,  and 
subsequently  to  that  assignment  the  opposing  party  —  the  debtor 
in  the  contract  —  obtains  a  judgment  for  the  damages  in  his 
action  on  the  tort,  the  latter  is  not  entitled  to  set  off  this  judg- 

1  Adams  v.  Rodarmel,  19  Ind.  339.  signee."      See,   however,    Morrow's  As- 

2  Walker  v.  McKay,  2  Mete.  (Ky.)  sio^nees  v.  Bright,  20  Mo.  298,  in  which, 
294,  per  Simpson  C.  J.  "  The  doctrine  upon  the  same  facts,  the  set-off  was  al- 
that  a  debt  or  demand  cannot  be  used  as  lowed,  the  court  plainly  mistaking  or 
a  set-off  until  it  becomes  due,  and  that,  misconceiving  the  extent  and  limitations 
unless  it  be  due  before  notice  of  the  as-  of  the  equitable  doctrine  flowing  from  the 
signment,  it  is  not  available  against  the  insolvency  of  the  assignors. 

assignee,  is  fully  established  by  adjudged  ^  w^'illiams    v.  Brown,   2    Keyes,  486. 

cases.  .  .  .   The    appellant,    not    having  See  also  Barlow  v.  Mj-ers,  6  N.  Y.  Sup. 

paid  the  debt  for  which  he  was  surety  at  Ct.  183.     But  where  negotiable  paper  is 

the  time  he  was  notified  of  the  assign-  assigned    after     maturity,    the     maker's 

ment  of  his  own  note,  had  at  that  time  rights  of  set-off  are  the  same  as  though 

no  available  set-off  or  defence  against  it.  the  demand  assigned  was  not  negotiable. 

The  mere  fact  that  he  was  surety  for  the  Norton  v.  Foster,  12  Kans.  44,  47,  48  ; 

assignor  on  another  note,  and  that  he  was  Leavenson    v.   Lafontane,   3  Kans.    523 ; 

insolvent,  would  not  constitute  an  equita-  Harris  v.  Burwell,  6-5  N.  C.  584;  contra, 

ble  defence  to  an  action  on  his  note  either  Richards  v.  Darly,  84  Iowa,  427,  429. 
in  the  name  of  the  assignor  or  the  as- 


200  CIVIL   REMEDIES. 

nieiit  against  the  one  recovered  against  himself  by  the  assignee. 
No  rights  of  set-off  existed  at  the  date  of  the  transfer,  and  none 
could  spi'ing  up  after  that  time.^ 

§  1G5.  It  is  possil)le  that  a  right  of  set-off  may  be  available 
at  the  time  an  action  is  bronglit,  although  at  some  prior  period 
it  was  suspended,  as  is  well  illustrated  by  the  following  case : 
On  the  29th  of  August  the  Hollister  Bank  discounted  for  one 
Monteath  a  sight  draft  on  New  York  drawn  by  him,  and  passed 
the  proceeds  to  his  credit  as  a  deposit.  He  did  not  draw  them 
out.  This  draft  was  dishonored  on  presentment.  On  the  31st  the 
bank  failed,  and  in  the  course  of  time  Robinson  was  appointed 
its  receiver.  On  the  21st  of  September  Monteath  assigned  to 
the  Howes  his  claim  against  the  bank  for  the  sum  on  deposit,  the 
same  being  partly  or  wholly  the  proceeds  of  the  said  draft.  At 
the  time  of  the  assignment  the  draft  in  question  was  held  by 
parties  in  New  York,  to  whom  the  bank  had  transferred  it  as 
collateral  security  ;  and,  of  course,  during  the  interval  in  which 
the  draft  was  thus  held,  the  bank  could  have  had  no  possible  set- 
off by  means  of  it  against  the  demand  of  Monteath  for  his  de- 
posit, either  made  by  him  or  by  his  assignee.  But  before  any 
action  was  brought,  the  bank  again  became  OAvner  of  the  draft. 
An  action  was  afterwards  commenced  by  the  receiver  to  recover 
an  indebtedness  due  to  the  bank  from  the  Howes ;  they  set  up 
the  claim  of  Monteath  for  his  deposit  assigned  to  them,  as  above 
stated  ;  and  the  receiver  in  fact  opposed  the  demand  of  the  bank 
against  Monteath  upon  the  dishonored  draft  as  a  set-off  to 
the  defendants'  set-off.  Although  the  New  York  Court  of  Ap- 
peals held  that  the  debt  against  the  bank  assigned  to  the  de- 
fendants b}^  Monteath  should  be  disallowed,  yet  their  entire 
reasoning  shows  that  it  was  disallowed,  not  because  it  would  not 
in  itself  have  been  a  valid  set-off,  but  because  its  effect  was  en- 
tirely destroyed  by  the  counter  set-off  of  the  draft  in  the  hands  of 
the  bank.  If  the  bank  had  retained  the  continuous  ownership  of 
the  draft,  as  soon  as  it  was  dishonored  it  would  have  been  a  good 
claim  against  ^Monteath,  and  would  have  extinguished,  in  whole 
or  in  part,  his  claim  for  the  money  due  on  deposit ;  this  set-off, 

1  Roberts    v.   Carter,   38  N.   Y.   107.  set-off  would  not  have  arisen,  since  at  the 

Woodruft"  J.  said,  by  way  of  a  dictum  time  of  tlie  transfer  no  debt  existed  which 

(p.    110),  that,  if  insolvency  of   the  as-  could  be  set  oft".    See  Martin  v.  llichard- 

signor  had  been  proved,  still  the  right  of  son,  68  N.  C.  255,  and  cases  cited. 


SET-OFF   AGAINST    THE    ASSIGNEE.  201 

existing  at  the  date  of  the  assignment  to  the  defendants,  would 
have  been  equally  available  against  them  ;  and  as  the  bank  be- 
came owner  of  the  draft  before  the  action  was  brought,  its  origi- 
nal right  revived  with  the  same  force  and  to  the  same  extent  as 
though  the  draft  had  never  been  out  of  its  control. ^ 

§  166.  It  is  held,  in  California,  that  a  demand  against  an  as- 
signor, which  was  obtained  by  the  debtor  or  accrued  in  his  favor 
before  notice  of  the  assignment,  although  in  fact  subsequent  to 
the  assignment  itself,  may  be  set  off  against  the  cause  of  action 
in  the  hands  of  the  assignee.^  This  ruling,  however,  is  clearly 
opposed  to  the  doctrine  of  the  New  York  cases  alread}^  quoted, 
and  to  the  theorj'  of  set-off  generally  adopted.  Notice  may  be 
required  in  order  to  cut  off  other  defences  ;  but  a  set-off,  accord- 
ing to  the  accepted  rule,  must  exist  in  the  form  of  a  debt  then 
due  and  payable  to  the  debtor  at  the  date  of  the  transfer.  A 
note,  pavable  on  demand,  with  or  without  interest,  transferred 
at  a  considerable  interval  of  time  after  its  date,  is  taken  and  held 
by  the  assignee,  subject  to  all  defences  existing  in  favor  of  the 
maker  against  the  payee  at  the  time  of  the  transfer;  in  other 
words,  such  a  note  is  transferred  after  maturity.^ 

§  167.  When  notice  to  the  debtor  is  necessary  to  a  complete 
protection  of  the  assignee  against  subsequent  transactions  be- 
tween the  assignor  and  the  debtor,  such  as  payment,  release,  and 
the  like,  an  actual  notice  is  not  indispensable.  Such  information 
or  knowledge  as  would  be  sufficient  to  put  any  reasonable  man 
upon  the  inquiry,  when  an  inquir}^  reasonably  followed  up  would 
have  led  to  an  ascertaining  of  the  truth,  is  equally  effective  to 
protect  the  assignee  ;  in  short,  the  equitable  rule  in  reference  to 
purchasers  of  land  applies  to  the  assignees  of  things  in  action."* 
In  Ohio,  a  set-off  against  the  person  beneficially  interested,  for 
whose  benefit  the  suit  is  prosecuted,  may  be  interposed  when  the 
action  is  brought  by  one  who  is,  within  the  meaning  of  the  code, 
a  trustee  of  an  express  trust,  and  there  has  been  no  assignment 
at  all.     Thus,  where  a  promise  is  made  to  A.  for  the  benefit  of 

1  Robinson  v.  Howes,  20  N.  Y.  84.  tion  whether  notes  on  demand  icith  interest 

2  McCabe  v.  Grey,  20  Cal.  509.  are  continuing  securities,  or  wliether,  like 

3  Herrick  v.  Woolverton,  41  N.  Y.  such  notes  witliout  interest,  tliej'  become 
581,   reversing  s.  c.  42  Barb.  50.     This  due  at  once. 

case  decides  nothing  new  in  the  law  of         *  Wilkins  v.  Batterman,  4   Barb.  47; 
set-off  ;  it  simply  ends  a  long  controversy     Williamson  v.  Brown,  15  N.  Y.  354. 
in  the  New  York  courts  upon  the  ques- 


202  CIVIL   REMEDIES. 

B.,  and  the  former,  in  pursuance  of  the  express  permission  of  the 
code,  brings  the  action  in  his  own  name,  a  set-off  existing  against 
B.,  who  is  the  real  party  in  interest,  the  beneficiary  for  whose 
behalf  the  contract  was  made  and  the  suit  is  maintained,  may  be 
pleaded,  and,  if  proved,  will  be  allowed  in  total  or  partial  bar  of 
the  recovery.^  While  in  actions  prosecuted  by  assignees  the  de- 
fendant can  always  avail  liimself  of  any  existing  valid  set-ofp,  and 
sometimes  counter-claim,  as  a  defence,  he  cannot  recover  a  judg- 
ment against  the  assignee  for  the  excess  of  any  of  his  claim  over 
the  amount  of  debt  established  by  the  plaintiff;  as  against  the 
assignee,  a  set-off  and  a  counter-claim  of  the  same  nature  —  that 
is,  a  right  of  action  which  would  be  a  counter-claim  if  prosecuted 
against  the  original  assignor  —  can  only  be  used  defensively,  and 
can  do  no  more  than  defeat  the  action  entirely.^ 

§  168.  Many  difficulties  have  arisen,  and  many  cases  have  been 
decided,  growing  out  of  proceedings  to  wind  up  insolvent  corpora- 
tions, and  especially  insolvent  insurance  companies ;  but,  as  the 
questions  generall}'-  turned  upon  particular  provisions  of  charters, 
or  of  statutes  regulating  such  proceedings,  little  or  no  aid  can  be 
obtained  from  these  decisions  in  construing  the  section  of  the 
code  under  consideration.  A  portion  of  these  companies  were 
mutual,  in  which  every  person  assured  became  at  once  a  corpora- 
tor, so  that  in  any  business  transaction  between  himself  and  the 
company  he  would  necessarily  occupy  both  the  position  of  cred- 
itor and  of  debtor.  This  double  relation  is  destructive  to  any 
power  on  his  part  of  invoking  the  doctrine  of  set-off.  Other 
companies  were  stock  corporations,  and,  in  addition  to  the  rules 
as  to  set-off  common  to  all  creditors  and  debtors,  there  are  special 
statutory  provisions  in  many  States  regulating  the  winding  up  of 
these  bodies,  which  greatly  enlarge  the  scope  of  set-off.  The 
adjudications  made  in  the  settlement  of  such  corporations,  and 
the  particular  rules  applicable  to  them  adopted  by  the  courts, 
have,  therefore,  little  or  no  connection  with  the  subject-matter 
of  the  present  discussion.  In  the  case  of  a  mutual  company 
there  is  no  room  for  any  set-off,  as  has  been  expressly  deter- 
mined. A  marine  insurance  company  having  become  insolvent, 
and  a  receiver  of  its  affairs  appointed,  he  brought  an  action  on 

1  Miller  &  Co.  v.  Florer,  15  Ohio  St.  525;  Loomis  v.  Eagle  Bank,  10  Ohio  St. 
148,  151.  327  ;  Casad  v.  Hughes,  27  Ind.  141. 

2  Leavenson  v.  Lafontane,  3  Kans.  523, 


SET-OFF    AGAINST   THE    ASSIGNEE.  203 

certain  notes  given  by  the  maker  thereof  for  the  premium  of  sev- 
eral policies  of  insurance.  A  loss  had  occurred  on  one  of  these 
policies  which  became  due  and  payable  before  any  of  the  notes 
fell  due,  and  before  the  appointment  of  the  receiver  and  the 
assignment  to  him.  There  was  an  interval  of  time,  then,  both 
before  the  appointment  of  the  receiver  and  afterwards,  during 
which  the  company  first  and  the  receiver  subsequently  were 
holders  of  a  claim  against  the  defendant  not  yet  matured,  while 
the  defendant  was  holder  of  a  claim  against  the  company  which 
tvas  due  and  payable.  Upon  the  general  doctrine  as  heretofore 
stated  in  the  text,  the  maker  of  these  premium  notes  could  not 
have  had  an  available  set-off  against  the  assignee,  because  at  the 
date  of  the  transfer  both  demands  had  not  matured  ;  but,  as  his 
own  claim  was  then  due  and  payable,  the  equitable  rule  founded 
upon  the  insolvency  of  the  assignor  would  have  relieved  him. 
The  set-off  was  entirely  rejected,  however,  on  the  ground  that 
the  company  was  mutual,  the  defendant  being  a  corporator,  and 
both  a  debtor  and  a  creditor.^  In  other  cases  brought  by  the 
receiver  of  an  insolvent  insurance  company,  not  mutual,  upon 
premium  notes,  claims  by  the  makers  of  the  notes  on  account  of 
losses  which  occurred  previous  to  the  appointment  of  the  receiver, 
but  not  adjusted  so  as  to  become  actually  payable  until  after  the 
transfer  to  him,  have  been  allowed  as  offsets,  not,  however,  by 
virtue  of  the  general  law  as  to  offsets,  —  it  being  held  that  they 
did  not  fall  within  the  settled  rules, — but  by  virtue  of  certain 
provisions  contained  in  the  statute  relating  to  insolvent  corpora- 
tions which  describe  such  claims  as  "  mutual  credits,"  and  direct 
them  to  be  set  off.^ 

§  169.  When  an  executor  or  administrator  sues  individually  on 
a  note  given,  or  a  promise  made  to  him  as  such  personal  represent- 
ative for  a  debt  owing  to  the  deceased  at  the  time  of  his  death, 
it  is  the  rule  in  New  York  that  the  defendant  cannot  set  off  claims 
due  to  himself  from  such  decedent,  although  accruing  prior  to 
the  death,  "  on  the  ground  that  the  plaintiff's  demand  [that  actu- 
ally sued  upon]  arose  after  the  death  of  the  testator  ;  and  in  such 

1  Lawrence  v.  Nelson,  21  N.  Y.  158.         2  Osgood  v.  De  Groot,  36  N.  Y.  348. 
It  was  conceded,  by  way  of  a  dictum,  that     See,  however,  Osgood  v.  Ogden,  4  Keyes, 
if  the  corporation  had  not  been  mutual,     70. 
the  set-ofF  would  have  been  allowed  as 
stated  in  the  text. 


204  CIVIL   REMEDIES. 

a  case,  no  set-off  can  be  received,  notwithstanding  it  existed  at 
the  time  of  the  death  of  the  deceased."  ^ 

§  170.  The  foregoing  cases  and  statements  relate  to  the  special 
defence  of  set-off  as  against  the  assignee.  Exactly  the  same 
rules  apply  to  every  other  species  of  defence,  with  the  single 
modification,  that,  in  respect  of  many  such  defences,  the  point  of 
time  which  limits  the  effect  or  cuts  off  the  availability  of  the 
defence  is  not  the  date  of  the  assignment,  but  the  date  of  the 
notice  thereof,  actual  or  implied,  which  is  given  to  the  debtor. 
If  the  debtor  is  not  notified  actually  or  impliedly  of  the  assign- 
ment, it  is  possible  that  many  transactions  between  himself  and 
the  assignor,  done  in  good  faith  on  his  part,  may  have  the  same 
effect  in  discharging  his  indebtedness  as  if  the  demand  had  not 
been  assigned,  —  such  as  payment  to  or  release  by  the  original 
creditor,  the  assignor.  But  no  transaction  can  have  this  effect  if 
entered  into  subsequently  to  a  notice  of  the  assignment  given  to 
the  debtor,  or  to  such  information  received  by  him  as  in  law 
amounts  to  the  same  thing  as  actual  notice.  Thus,  if  after  a 
notice  to  the  debtor  that  the  demand  against  him  is  assigned,  he  ' 
make  a  payment  to  the  assignor,  he  cannot  rely  upon  it  as  a 
defence  .partial  or  total  to  an  action  brought  by  the  assignee  to 
enforce  the  claim. ^ 

The  scope  of  this  work  does  not  require  nor  even  permit  that 

1  should  discuss  the  defence  of  set-off,  or  any  other  particular 
defence,  in  an  exhaustive  manner.  The  sole  purpose  of  this  sec- 
tion is  to  construe  and  interpret  the  provision,  found  in  almost 
the  same  language  in  all  the  State  codes  of  procedure,  and  to 
ascertain  what  change,  if  any,  that  provision  had  wrought  in  the 
pre-existing  rules  of  the  law  in  relation  primarily  to  parties,  and 
incidentally  to  the  availability  of  defences  where  the  party  plain- 
tiff is  an  assignee  of  a  thing  in  action. 

1  Merritt  v.  Seaman,  6  N.  Y.  168,  cit-         2  Yield  v.  The  Mayor,  &c.  of  X.  Y.,  6 
ing  Root  V.  Taylor,  20  Jolin.  137 ;  Fry  v.     N.  Y.  179. 
Evans,  8  Wend.  530 ;  Mercein  v.  Smith, 

2  mil,  210 ;  2  R.  S.  279. 


TRUSTEE  OF  AN  EXPRESS  TRUST.  205 

SECTION  FIFTH. 

WHEN  A   TRUSTEE   OF  AN  EXPRESS   TRUST   MAY   SUE. 

§  171.  There  are  two  forms  of  the  statutory  provision,  which 
differ,  however,  very  slightly.  The  first  is :  "  An  executor,  an 
administrator,  a  trustee  of  an  express  trust,  or  a  person  expressly 
authorized  by  statute,  may  sue  without  joining  with  him  the 
person  for  whose  benefit  the  action  is  prosecuted.  A  trustee  of 
an  express  trust,  within  the  meaning  of  this  section,  shall  be  con- 
strued to  include  a  person  with  whom  or  in  whose  name  a  con- 
tract is  made  for  the  benefit  of  another."  ^  The  second  form  is  a 
little  more  special :  "  An  executor,  administrator,  trustee  of  an 
express  trust,  a  person  with  whom  or  in  whose  name  a  contract 
is  made  for  the  benefit  of  another,  or  a  person  expressly  author- 
ized by  statute,  may  bring  an  action  without  joining  with  him 
the  person  for  whose  benefit  it  is  prosecuted.  Officers  may  sue 
and  be  sued  in  such  name  as  is  authorized  by  law,  and  official 
bonds  may  be  sued  upon  in  the  same  way."  ^  The  only  diffi- 
culties of  interpretation  presented  by  this  section  are  the  deter- 
mining with  exactness  what  persons  are  embraced  within  the 
three  classes,  described  as  "  trustees  of  an  express  trust,"  "per- 
sons with  whom  or  in  whose  name  a  contract  is  made  for  the  ben- 
efit of  another,"  and  "persons  expressly  authorized  by  statute  to 
sue."  It  is  plain  that  there  are  substantially  three  classes.  The 
second  and  better  form  of  the  provision  actually  separates  them, 
and  does  not  represent  one  as  a  subdivision  of  the  other.  The 
first  form  in  terms  speaks  of  "  the  person  with  whom  or  in  whose 
name  a  contract  is  made  for  the  benefit  of  another  "  as  an  instance 
or  individual  of  the  wider  and  more  inclusive  group,  "  trustees  of 
an  express  trust."  It  should  be  carefully  noticed,  however,  that 
these  two  expressions  are  not  stated  to  be  synonymous ;  the 
former  is  not  given  as  a  definition  of  the  latter.  The  section 
does  not  read,  "  a  trustee  of  an  express  trust  shall  be  construed 
to  mean  a  person  with  whom  or  in  whose  name  a  contract  is 

1  N.  Y.  §  113  ;  Ind.  §  4  ;  Minn.  §  28  ;  cotali,  §  66 ;  North  Carolina,  §  57  ;  Wash. 

Cal.  §  369  ;  Mo.  art.  1,  §  3  ;  Wise.  ch.  122,  §  4 ;  Ida.  §  6 ;  Wyo,  §  34  ;  Mont.  §  6. 

§    14;    Florida,   §   64;    South    CaroHna,  -'  Ohio,   §  27;    Kansas,   §   28;    Iowa, 

§  136  ;  Oregon,  §  29  ;  Nevada,  §  6 ;  Da-  §  2544 ;  Nebraska,  §  30  ;  Kentucky,  §  33. 


206  CIVIL   REMEDIES. 

made  for  tlie  benefit  of  another ; "  but  simply  that  the  Latter 
shall  be  regarded  as  one  species  of  the  genus.  There  is  here  no 
limitation,  but  rather  an  extension,  of  the  meaning,  and  the 
clause  of  course  recognizes  other  kinds  of  trustees  besides  the 
party  to  the  special  form  of  contract,  who  is  not  very  happily 
termed  a  "  trustee."  The  section  of  the  New  York  code,  when 
originally  passed,  contained  but  the  first  sentence  as  it  now 
stands.  Some  doubt  arose  as  to  its  meaning,  and  a  judicial 
decision  having  held  that  the  phrase  embraced,  among  others,  a 
person  with  whom  or  in  whose  name  a  contract  is  made  for  the 
benefit  of  another,  the  legislature,  to  remove  all  possibility  of 
doubt,  added  this  judicial  language  as  an  explanatory  clause. 
The  two  forms  of  the ,  provision,  although  their  phraseology 
differs  somewhat,  mean  exactly  the  same  thing,  and  establish 
exactly  the  same  rule.  As  these  two  phrases,  whether  they  be 
regarded  as  separate,  or  one  as  partially  explanatory  of  the 
other,  are  tlie  most  comprehensive  ones  in  the  section,  and  pre- 
sent the  main  difficulties  of  construction,  I  shall  discuss  them 
first  in  order,  and  shall  endeavor  to  ascertain  what  particular 
classes  of  persons  were  intended  to  be  described  by  them.  This 
discussion  will  consist  in  discovering,  if  jjossible,  some  general 
principle  of  interpretation  by  which  to  test  each  particular  case, 
and  in  stating  the  instances  which  have  been  definitely  passed 
upon  by  the  courts. 

§  172.  What  is  a  "  trustee  of  an  express  trust"  ?  The  section 
uses  the  term  in  its  most  general  sense  without  limitation,  so  that 
when  its  full  legal  signification  is  ascertained,  that  must  be  its 
meaning  in  this  connection.  If  the  legislature  has  said,  as  in 
New  York  and  other  States,  that,  in  addition  to  its  generally 
accepted  technical  import,  it  shall  also  include  certain  persons 
who  are  not  usually,  nor  perhaps  with  strict  accuracy,  denomi- 
nated "  trustees,"  this  exercise  of  the  legislative  power  within 
the  domain  of  definition  does  not  change,  certainly  does  not 
lessen,  its  signification,  as  it  stands  without  the  explanatory  com- 
ment. In  Ohio,  and  in  several  of  the  States,  the  phrase  is  used 
alone,  but  accompanied  by  the  clause  which  is  descriptive  of 
another  class,  and  is  not  a  mere  partial  explanation.  We  must 
find  the  true  legal  definition  of  "  trustees  of  an  express  trust," 
and  add  to  this  the  "  persons  with  whom  or  in  whose  name  con- 
tracts are  made  for  the  benefit  of  others:"  the  combined  result 


TRUSTEE   OF   AN    EXPRESS   TRUST.  207 

will  be  the  entire  class  intended  by  the  legislature.  It  is  obvious 
that  the  trust  must  be  "  express,"  in  contradistinction  to  implied. 
In  the  large  number  of  instances  where  a  trust  is  raised  by  im- 
plication of  law  from  the  acts,  circumstances,  or  relations  of  the 
parties,  the  trustee  is  certainly  not  embraced  within  the  language 
of  the  provision.  An  express  trust  assumes  an  intention  of  the 
parties  to  create  that  relation  or  position,  and  a  direct  act  of  the 
parties  by  which  it  is  created  in  accordance  with  such  intention, 
outside  of  the  mere  operation  of  the  law.  In  the  case  of  an 
implied  trust,  the  law,  for  the  purpose  of  doing  justice,  and 
usually  for  the  purpose  of  working  out  some  equitable  remedy, 
lays  hold  of  the  j^i'ior  situation,  acts,  or  circumstances  of  the 
parties,  declares  that  a  trust  arises  therefrom,  and  imposes  the 
quality  of  trustee  upon  one,  and  of  beneficiary  upon  another,  in 
a  manner  and  with  a  result  that  are  often  the  furthest  possible 
from  their  actual  design.  In  an  express  trust  the  parties  intend 
such  a  relation  between  themselves,  carry  out  their  intention  by 
suitable  words,  and  the  law  confirms  and  accomplishes  the  object 
which  they  had  in  view.  An  express  trust  primarily  assumes 
three  parties :  the  one  who  by  proper  language  creates,  grants, 
confers,  or  declares  the  trust ;  the  second  who  is  the  recipient  of 
the  authority  thus  conferred  ;  and  the  third  for  whose  benefit  the 
authority  is  received  and  held.  It  is  true  that  in  many  instances 
the  first-named  parties  are  actually  but  one  person ;  that  is,  the 
same  individual  declares,  confers,  receives,  and  holds  the  author- 
ity for  the  benefit  of  another ;  but  the  theory  of  the  transaction 
is  preserved  unaltered,  for  the  single  person  who  creates  and 
holds  the  authority  acts  in  a  double  capacity,  and  thus  takes  the 
place  of  two  persons.  It  is  impossible,  however,  to  conceive  of  an 
express  trust  as  a  legal  transaction  or  condition,  without  assum- 
ing the  prior  intention,  and  the  express  language  by  which  this 
intention  is  effected,  and  the  trust  created  resting  upon  one  as 
the  trustee  for  the  benefit  of  a  second  as  the  beneficiary  ;  and, 
except  as  every  grant,  transfer,  or  delegation  of  authority  and 
power  is  in  a  certain  broad  sense  a  contract,  the  notion  of  a  con- 
tract is  not  essential  to  our  conception  of  an  express  trust.  The 
authority  may  be  conferred  by  the  pul)lic  acting  through  govern- 
mental machinery,  as  in  the  case  of  officers ;  or  by  the  interven- 
tion of  courts,  as  in  the  cases  of  administrators,  executors, 
receivers,  and  the  like  ;  or  by  private  persons,  as  in  innumerable 


208  CIVIL   REMEDIES. 

instances  of  trusts  relating  to  real  or  personal  property;  but 
there  must  be  the  intent  to  accomplish  that  very  result,  and  this 
intent  must  be  expressed  by  language,  or  by  some  process  of 
delegation  which  the  law  regards  as  an  equivalent.  Further- 
more, in  its  accurate  legal  signification,  a  trust  implies  something 
which  is  the  subject  thereof.  Although  the  word  may  have  a 
more  extensive  meaning  in  its  popular  use,  so  that  a  trust  may 
be  spoken  of  where  the  trustee  is  simply  clothed  with  a  power  to 
do  some  personal  act  unconnected  with  any  property  in  which  he 
has  an  interest  or  over  which  he  has  a  control,  yet  this  is  not  its 
legal  import.  An  illustration  of  this  legal  notion  of  a  trustee 
may  be  seen  in  the  case  of  a  guardian  over  the  person  alone  of 
his  ward,  without  any  interest  in  or  power  over  his  estate,  or  the 
committee  of  the  person  of  a  lunatic.  Such  a  guardian  or  com- 
mittee, although  possessing  a  power  to  be  exercised  for  the  ben- 
efit of  another,  is  not  a  trustee  ;  and  the  term,  when  applied  to 
him,  could  be  used  only  in  a  popular  and  not  a  legal  sense.  Such 
a  guardian  or  committee  would  not  therefore,  by  virtue  merely 
of  the  permission  granted  in  the  provision  of  the  statute  under 
examination,  be  entitled  to  sue  in  his  own  name  as  a  trustee  of" 
an  express  trust.  In  the  light  of  this  analysis  of  the  expression  as 
a  term  of  legal  import,  it  is  plain  that  "  a  person  with  whom  or  in 
whose  name  a  contract  is  made  for  the  benefit  of  another,"  is 
not  necessarily  a  trustee.  He  may  be  ;  and  whether  he  is  or  is 
not,  must  depend  entirely  upon  the  nature  and  subject-matter  of 
the  contract  itself.  The  contract  may  be  of  such  a  kind,  stipu- 
lating concerning  property  in  such  a  manner,  that  the  contracting 
party  will  be  made  a  trustee.  On  the  other  hand,  it  may  be  of 
such  a  kind,  having  no  reference  perhaps  to  property,  or  stipulat- 
ing for  personal  acts  alone,  that  the  contracting  party  will  not  be 
a  trustee  in  any  proper  sense  of  the  word,  but  will  be  at  most  an 
agent  of  the  person  beneficially  interested.  There  are  numerous 
instances,  therefore,  in  which  an  agent,  who  enters  into  an  agree- 
ment for  either  a  known  or  for  an  unknown  principal,  is 
permitted,  in  accordance  with  the  particular  clause  under  con- 
sideration, to  sue  in  his  own  name. 

§  173.  I  shall  proceed  to  show,  in  the  first  place,  how  far  the 
foregoing  description  is  sustained  by  judicial  authority.  Few  cases 
have  attempted  to  define  the  phrase,  "  trustee  of  an  express 
trust,"  in  any  comprehensive  manner,  for  the  courts  have  in  most 


TRUSTEE    OF   AN    EXPRESS   TRUST.  209 

cases  been  content  with  determining  whether  the  particular  in- 
stance before  them  fell  within  the  term.  The  following  defini- 
tions or  descriptions,  however,  have  been  given :  "  An  express 
trust  is  simply  a  trust  created  by  the  direct  and  positive  acts  of 
the  parties,  by  some  writing,  or  deed,  or  will.  And  it  is  to  be 
observed,  in  reference  to  §  4  of  the  code  [of  Indiana],  that  it 
does  not  assume  to  define  the  meaning  of  the  term  '  trustee  of  an 
express  trust '  in  its  general  sense  ;  it  simply  declares  that  these 
words,  within  the  meaning  of  the  section,  '  shall  be  construed  to 
include  a  person  with  whom,  or  in  whose  name,  a  contract  is  made 
for  the  benefit  of  another.'  Evidently  this  provision  was  not  in- 
tended to  limit  the  meaning  of  the  general  term,  '  expregs  trust,' 
or  to  confine  the  operation  of  the  statute  to  the  particular  class 
of  cases  referred  to,  but  rather  to  enlarge  its  sense  by  including 
also  that  class  within  it."  ^  In  another  case  it  was  said :  "  In 
order  to  constitute  a  trustee  of  an  express  trust,  as  I  understand 
the  statute,  there  must  be  some  express  agreement  to  that  effect, 
or  something  which  in  law  is  equivalent  to  such  an  agreement. 
The  case  of  factors  and  mercantile  agents  may  or  may  not  consti- 
tute an  exception  under  the  custom  and  usage  of  merchants. 
But  in  every  other  case  the  trust  must,  I  think,  be  expressed  by 
some  agreement  of  the  parties,  not  necessarily,  perhaps,  in  writ- 
ing, but  either  written  or  verbal,  according  to  the  nature  of  the 
transaction.  In  this  case  no  agreement  is  shown  that  the  plain- 
tiff was  to  take  or  hold  as  trustee,  and  that  he  is  a  trustee  results 
merely  from  other  circumstances.  It  is  implied  from  the  fact  of 
partnership,  and  from  the  fact  that  the  plaintiff  received  the 
assignment  on  account  of  a  debt  due  the  firm.  If  it  is  not  a  case 
purely  of  implied  trust,  as  distinguished  from  an  express  trust, 
then  I  am  at  loss  to  conceive  of  one  ;  and  to  hold  the  plaintiff  to 
be  a  trustee  of  an  express  trust  would,  in  my  judgment,  be  a 
palpable  disregard  of  the  statute,  and  a  violation  of  the  intent  of 
the  legislature."  ^     In  a  case  where  a  contract  in  the  nature  of  a 

1  Weaver  v.  Trustees  of  the  Wabash,  others,  with  an  understanding  that  P. 
&c.,  Canal  Co.,  28  Ind.  112,  119.  &  W.  were,  not  to  be  credited  on  their 

2  Robbins  v.  Deverill,  20  Wise.  142,  per  debt  to  K.  &  L.  until  the  money  was  col- 
Dixon  C.  J.  This  was  an  action  by  the  lected.  Dixon  C.  J.  said:  "  Tlie  demand 
plaintiff  as  assignee  of  P.  &  W.  The  was  transferred  to  the  plaintiff  alone  by 
assignment  was  in  writing,  but  was  taken  words  of  absolute  assignment,  no  trust 
on  account  of  a  debt  due  from  P.  &  being  e.T/»-esW.  .  .  .  Upon  these  facts  tiie 
W.  to  the  firm  of  R.  &  L.,  which  con-  plaintiff  cannot  recover.  He  is  not  the 
sisted    of    the    plaintifi'   and    the    two  real  party  in  interest,  nor  the  trustee  of 

14 


210  CIVIL   REMEDIES. 

lease  was  effected  by  a  person  describing  himself  in  the  instru- 
ment as  agent  of  the  owners,  but  who  had  no  interest  whatever 
in  the  premises  leased,  and  did  not  execute  the  instrument,  and 
to  whom  no  promise  was  made  as  the  lessor,  it  was  held  that 
he  could  not  maintain  an  action  for  the  rent  or  for  possession  of 
the  land  forfeited  by  non-payment  of  the  rent.  He  could  not  sue 
as  the  "  person  with  whom,  or  in  whose  name,  a  contract  is  made 
for  the  benefit  of  another,"  because  no  promise  at  all  was  made 
to  him,  and  he  M'as  not  a  "trustee  of  an  express  trust."  The 
court  said  :  "  One  who  contracts  merely  as  the  agent  of  another, 
and  has  no  personal  interest  in  the  contract,  is  not  the  trustee  of 
an  express  trust  within  the  meaning  of  the  statute,  and  cannot, 
under  the  code,  sue  upon  such  contract  in  his  own  name."  Of 
course  this  last  expression  must  be  taken  in  connection  with  the 
facts  of  the  case  ;  namely,  that  no  promise  was  made  to  the  plain- 
tiff individually.^ 

§  17-4.  Tiie  nature  of  an  express  trust,  and  the  classes  of  per- 
sons embraced  within  the  statutory  phrases  in  question,  were  de- 
termined, upon  great  consideration  by  the  New  York  Court  of 
Appeals,  in  the  leading  case  of  Considerant  v.  Brisbane.^  "  The 
term  '  trustee  of  an  express  trust '  had  acquired  a  technical  and 
statutory  meaning.  Express  trusts,  at  least  after  the  time  of  the 
adoption  of  the  [New  York]  Revised  Statutes,  were  defined  to 
be  trusts  created  by  the  direct  and  positive  acts  of  the  parties,  by 
some  writing,  or  deed,  or  will ;  and  the  Revised  Statutes  had 
abolished   all   express  trusts  except   those   therein   enumerated 

an  express  trust,  within  the  meaning  of  and  M-  Kawlings,  tenant,  that  the  above 
the  statute.  He  is  not  a  trustee  of  an  contract  is  at  an  end,  and  B.  F.  Fuller 
express  trust,  because  no  such  trust  ap-  shall  be  entitled  to  take  possession  of  said 
pears  from  the  assignment,  and  none  is  property."  The  complaint  alleged  rent 
shown  to  exist  between  himself  and  his  unpaid,  and  demanded  possession  and  the 
copartners  by  virtue  of  any  other  instru-  amount  of  rent  due.  1  he  court  said  : 
nient."  lie  then  adds  the  remark  quoted  "  It  will  be  observed  that  the  complaint 
iu  the  text.  does  not  assert  any  claim  of  title  in 
1  Rawlings  v.  Fuller,  31  Ind.  2.55.  Fuller.  The  contract  is  not  signed  by 
Fuller  sued  on  the  following  agreement :  Fuller,  and  does  not,  in  express  terms, 
"  Articles  of  agreement  between  B.  F.  contain  a  promise  to  pay  rent  to  him.  It 
Fuller  and  M.  Kawlings :  I,  B.  F.  Fuller,  describes  him  as  agent  of  the  property, 
agent  for  Sarah  Floyd's  heirs'  property,  and  expressly  states  that  it  belongs  to  the 
do  agree  to  rent  [certain  premises]  to  M.  heirs  of  S.  Floyd.  We  do  not  think  tlie 
Kawlings  for  [a  certain  rent],  and  on  the  facts  constitute  Fuller  a  trustee  of  an  ex- 
failure  on  the  part  of  the  said  M.  Kawlings  press  trust,"  adding  the  language  quoted 
to  pay  said  rent  on  the  first  day  of  every  in  the  text. 

month    in   advance,   then    it    is    hereby         -  Considerant  v.  Brisbane,  22  N.  Y. 

agreed   between  B.  F.  Fuller,  landlord,  389,  395,  per  Wright  J. 


TRUSTEE  OP  AN  EXPRESS  TRUST.  211 

which  related  to  land.  If  this  section  (§  113)  of  the  code  was 
to  be  restricted  and  limited  to  those  enumerated  express  trusts, 
the  practical  inconvenience  arising  from  making  the  beneficial 
interest  the  sole  test  of  the  right  to  sue,  and  which  that  section 
(§  113)  was  intended  to  obviate,  would  continue  to  exist  in  a 
large  class  of  formal  and  informal  trusts.  Accordingly,  in  1851, 
the  section  was  amended  by  adding  the  provision  that  '  a  trustee 
of  an  express  trust,  within  the  meaning  of  this  section,  shall  be 
construed  to  include  a  person  with  whom,  or  in  whose  name,  a 
contract  is  made  for  the  benefit  of  another.'  It  is  to  be  observed 
that  there  is  no  attempt  to  define  the  meaning  of  the  term  '  trus- 
tee of  an  express  trust '  in  its  general  sense  ;  but  the  statu- 
tory declaration  is  that  these  words  '  shall  be  construed  to  include 
a  person,'  &c.  The  counsel  for  the  respondent  insists  that  the 
sole  intention  of  the  legislature  in  amending  the  section  was  to 
remove  a  doubt  that  had  been  expressed  whether  a  factor  or 
other  agent,  who  had  at  common  law  a  right  of  action  on  a  con- 
tract made  for  the  benefit  of  his  principal  by  reason  of  his  legal 
interest  in  the  contract,  was  by  the  code  deprived  of  that  right. 
But  no  such  limited  intention  can  be  inferred  from  the  words  of 
the  statute.  Indeed,  it  is  only  by  a  liberal  construction  of  the 
section  that  the  case  of  a  contract  by  a  factor  (an  individual  con- 
tract) can  be  brought  within  it  at  all.  It  is  intended  manifestly 
to  embrace,  not  only  formal  trusts  declared  by  deed  inter  partes^ 
but  all  cases  in  which  a  person  acting  in  behalf  of  a  third  party 
enters  into  a  written  express  contract  with  another,  either  in  his 
individual  name,  without  description,  or  in  his  own  name  ex- 
pressly, in  trust  for,  or  on  behalf  of,  or  for  the  benefit  of,  another, 
by  whatever  form  of  expression  such  trust  may  be  declared.  It 
includes  not  only  a  person  with  whom,  but  one  in  whose  name,  a 
contract  is  made  for  the  benefit  of  another."  These  definitions 
and  descriptions  of  the  term  fully  sustain  the  conclusions  reached 
in  the  preceding  paragraph  as  to  the  legal  meaning  of  the  phrase 
"  trustee  of  an  express  trust."  It  is  abundantly  settled  that  an 
agent  cannot  sue  in  his  own  name  to  enforce  an  implied  liability 
to  his  principal ;  if  by  any  possibility  he  should  be  a  trustee 
under  such  circumstances,  he  w^ould  not  be  the  trustee  of  an 
express  trust. -^ 

1  Palmer  v.  Fort  Plain ,  &c.  Plank  R.  Co. ,    no  covenant  or  agreement  running  to  these 
11  N.  Y.  376,  390,  per  Selden  J.  "  There  is     officers  in  terms.     They,  as  agents  of  the 


212 


CIVIL   REMEDIES. 


§  175.  Having  thus  attempted  to  arrive  at  a  general  definition 
of  the  term,  I  shall  proceed  to  consider  the  cases  which  are  em- 
braced within  it,  and  shall  take  at  first  those  in  which  a  "  person 
with  whom,  or  in  whose  name,  a  contract  is  made  for  the  benefit 
of  another"  has  sued  in  his  own  name.  It  is  fully  established  by 
numerous  decisions  that  when  a  contract  is  entered  into  expressly 
with  an  agent  in  his  own  name,  the  promise  being  made  directly 
to  him,  although  it  is  known  that  he  is  acting  for  a  principal,  and 
even  although  the  principal  and  his  beneficial  interest  in  the 
agreement  are  fully  disclosed  and  stipulated  for  in  the  very  instru- 
ment itself,  the  agent  in  such  case  is  described  by  the  language 
of  the  statute,  and  may  maintain  an  action  upon  the  contract 
in  his  own  name  without  joining  the  person  thus  beneficially 
interested.^     The  following  are  particular  instances,  or  examples 


town,  convey  the  right  to  use  the  high- 
way upon  a  -certain  condition.  It  is 
virtually  the  act  of  the  town  through 
them.  If  an  implied  covenant  arises  upon 
the  instrument,  it  is  a  covenant  with  the 
town,  and  must  be  enforced  by,  and  in  the 
name  of,  tlie  town."  Euckman  v.  Pitcher, 
20  N.  Y.  9.  "  The  agent  may,  in  many 
cases,  sue  upon  express  contracts  made 
with  himself  by  name.  .  .  .  But  this  im- 
plied duty  or  assumpsit  arises  only  in 
favor  of  those  to  whom  the  money  in  fact 
belonged,  and,  therefore,  cannot  be  en- 
forced in  the  name  of  another  person  to 
whom  the  obligation  is  not  due." 

1  Considerant  v.  Brisbane,  22  N.  Y. 
389,  reversing  s.  c.  2  Bosw.  471.  The 
plaintiff  was  agent  for  a  foreign  corpora- 
tion which  did  business  under  the  name 
of  "  Bureau,  Guillen,  Goden,  &  Co."  The 
defendant  applied  to  the  plaintiff  for  stock 
in  sai<l  corporation,  and  authorized  the 
plaintifi'  to  subscribe  in  his  name  for 
such  stock  to  the  amount  of  810,000,  and, 
in  pa3'ment  of  the  subscription,  gave 
plaintiff  two  notes,  each  in  the  following 
form  :  "  New  York,  March  1,  1855.  On 
the  first  day  of  July,  1855,  I  promise  to 
pay  V.  Considerant,  executive  agent  of 
the  com|)any  Bureau,  Guillon,  Goden  & 
Co.  tlie  sum  of  So.lXIO,  for  which  I  am  to 
receive  stock  of  said  company  known  as 
premium  stock,  to  the  amount  of  $5,000, 
value  received.  A.  Brisbane."  The 
plaintiff  alleged  that  he  had  entered  de- 


fendant's name  as  a  subscriber ;  averred 
a  tender  of  the  stock  and  a  refusal  to  ac- 
cept the  same  ;  and  sued  in  his  own  name 
on  the  notes.  The  Court  of  Appeals  lield 
that  he  could  maintain  the  action.  The 
judgment  of  Wright  J.  is  an  exhaustive 
discussion  of  the  whole  subject.  Denio  J. 
dissented,  but  not  from  the  general  rea- 
soning as  to  the  true  interpretation  of  the 
code.  His  dissent  was  based  entirely 
upon  a  construction  of  the  notes  sued 
upon.  He  insisted  that  the  promise  in 
these  notes  was,  in  fact,  made  to  the  com- 
pany, and  not  to  the  agent ;  and  so  the 
case  did  not  fall  within  the  terms  of  the 
statutory  provision.  Rowland  v.  Phalen, 
1  Bosw.  43.  Plaintiff  sued  on  a  contract 
in  which  he  was  described  as  "  acting  on 
behalf  of  I.  S.  and  others,"  and  stipula- 
tions were  made  by  and  with  him.  Chel- 
tenham Fire-brick  Co.  v.  Cook,  44  Mo. 
29.  The  defendants  executed  a  bond, 
wherein  they  bound  themselves  "  to  pay 
the  said  Cheltenham  Fire-brick  Co.  for 
their  own  use  and  for  the  use  of  Evans  and 
Howard,  respectively,"  certain  moneys 
under  certain  conditions.  The  company 
sueil,  alleging  moneys  due  to  it  and  also 
to  Evans  and  Howard.  Wright  v.  Tinsley, 
80  Mo.  389.  An  agreement  was  entered 
into  between  Wright,  the  plaintiff,  for  the 
benefit  of  Mrs.  Dawson,  his  daughter, 
and  Tinsley,  the  defendant.  "  Wright 
obviously  comes  literally  within  this 
definition,  and  is  the  proper  party  plain- 


TRUSTEE   OF   AN   EXPRESS   TRUST.  213 

of  particular  classes  of  cases,  in  which  an  agent  has  been  per- 
mitted to  sue,  or  may  always  sue,  in  his  own  name,  because  the 
contract  is  made  with  liim  directly,  although  on  behalf  of  a 
known  principal :  on  a  sealed  lease  between  the  plaintiff,  as 
agent  for  the  owner,  of  the  first  part,  and  the  defendant  as  the 
lessee  ;  ^  on  a  sealed  contract  between  plaintiff  and  defendant,  the 
plaintiff  describing  himself  as  agent  for  his  sisters,  and  stipulating 
that  they  should  act  in  defendant's  theatre  at  specified  wages, 
which  the  latter  covenanted  to  pay,  the  action  being  brought  for 
such  wages  ;^  where  the  plaintiff,  being  the  holder  of  the  legal 
title  to  certain  land,  which  he  held,  however,  merely  for  the 
benefit  of  a  married  woman,  was  induced,  by  false  representa- 
tions, to  execute  a  mortgage  thereon,  supposing  it  to  be  for  her 
benefit  and  at  her  request,  but  in  fact  without  a,ny  consideration 
paid  to  himself  or  to  her,  brought  an  action  in  his  own  name 
to  restrain  a  foreclosure  of  the  mortgage ;  ^  in  an  action  on  a 
policy  of  marine  insurance  "  for  the  account  of  whom  it  may 
concern,"  and  in  case  of  loss  the  amount  insured  to  be  paid  to 
the  plaintiff  or  order;*  where  a  promise  was  made  to  the  admin- 
istrator of  an  estate,  and  he  afterwards  resigned,  and  another  was 
appointed  in  his  place,  it  being  held  that  he  was  the  proper  party 

tifF."   Weaver  w.  Trustees  of  the  Wabash,  the  action  to  foreclose.     Scantlin  y.  Alli- 

&c.    Canal    Co.,  '28    Ind.    112;    Rice    v.  son,   12  Kans.  85,  88.      A  note  was,  by 

Savery,  22  Iowa,  470,  in   which  it  was  consent   of   all    the    persons   interested, 

held  that  either  the  agent  or  the  benefi-  given   to   one  who   held    it  in  trust  for 

ciary  might  sue.     See  supra,  §  140.     Win-  others.     An  action  by  this  payee  alone, 

ters  V.   Rush,  34  Cal.   136.      Action  by  without  joining  the  beneficiaries,  was  sus- 

Winters  on  the  following  note  :  "Twelve  tained.     And    where  A.   was  jointly  in- 

montlis  after  date  I  promise  to  pay  W.  terested  witli  others  in  a  claim,  and  made 

M.  Winters,  or  any  authorized  agent  of  a  contract  in  his  own  name  with   B.,  by 

the  Pacific  Methodist  College,  tlie  sum  of  which   the   latter   agreed   to   collect   the 

$1,150,  for  the  endowment  of  said  college."  same,  and   account   to    him  for  the  pro- 

The  court  held  the  action  to  be  properly  ceeds,  he  was  permitted  to  maintain  an 

brought  in  the  name  of  the  plaintiff,  and  action    against    B.    without   joining   the 

approved    of    Considerant    v.    Brisbane,  others  as  coplaintiffs.      Noe  v.   Cin-istie, 

Ord  V.  McKee,  5  Cal.  515.     Notes  were  51  N.  Y,  270,  274.     In  Hubbell  v.  Med- 

given  by  defendant  to    "James  L.  Ord,  bury,  53  N.  Y.  98,  the  provision  of  tlie 

agent  of  W.  H.  McKee.  for  the  price  of  land  code  was  held  to  be  permissive  only,  and 

owned  by  McKee,  and  sold  to  the  defend-  not  to  prohibit  an  action  by  the  benefi- 

ant ;    and  a  mortgage  to  secure  the  notes  ciary,  even  without  the  trustee, 
was  given  back  directly  to  McKee.     The  ^  Morgan  v.  Reid,  7  Abb.  Pr.  215. 

action  is  by  Ord   to  foreclose  the  mort-  2  Nelson  v.  Nixon,  13  Abb.  Pr.  104. 

gage.     Held,  that  Ord  could  sue  on  the  •*  Brown  v.  Cherry,  38  How.  Pr.  352. 

notes;  and,  as  the  mortgage  is  a  mere         *  Walsh   v.   Wash.   Mar.   Ins.  Co.,   3 

security  for  tiie  payment  of  the  notes  and  Robt.  202  ;  Greenfield  v.  Mass.  Mut.  Ins. 

an  incident  of  the  debt,  he  could  maintain  Co.,  47  N.  Y.  430. 


214  CIVIL   REMEDIES. 

to  sue  ;  ^  where  a  grantee  in  a  deed  of  land  was  simply  acting  as 
agent  for  another,  and  the  purchase  price  was  paid  with  that 
other's  money,  the  grantee  is  the  proper  party  to  sue  for  the 
breach  of  a  covenant  which  was  broken  immediately  upon  the 
execution  of  the  deed,  e.  ^.,  a  covenant  against  incumbrances ;  ^ 
a  guest  at  an  inn  who  had  property  of  another  in  his  possession, 
which  was  lost,  was  held  to  be  the  proper  party  to  sue  for  its 
value  ;  ^  an  auctioneer  may  sue  for  the  price  of  goods  sold  by 
him,  whether  he  have  any  interest  in  the  price  or  not,*  and  a 
sheriff,  for  the  price  of  property  sold  by  him  on  execution ;  ^  the 
master  of  a  ship  or  other  vessel  may  maintain  an  action  for  freight, 
or  on  any  contract  concerning  the  ship,  entered  into  on  behalf  of 
the  owners,^  or  for  the  taking  and  carrying  away,  conversion  of, 
or  injury  to,  the  cargo.' 

§  176.  Various  kinds  of  bonds  and  undertakings  generally  re- 
quired by  statute,  and  given  to  some  designated  obligee,  although 
showing  on  the  face  that  they  are  designed  to  protect,  secure,  or 
indemnify  other  persons,  are  also  contracts  made  "  with,  or  in  the 
name  of,  one  person  for  the  benefit  of  another  ;  "  and  although  the 
party  immediately  interested  may  in  general  sue  in  his  own 
name,^  yet  the  obligee  or  person  to  whom  the  promise  is  made 
may  always,  unless  forbidden  by  statute,  maintain  the  action, 
and  in  some  States  is  the  only  one  who  is  permitted  to  do  so. 
Among  these  are  bonds  in  great  variety  given  to  the  "  people  " 
or  to  the  "  State,"  conditioned  upon  the  faithful  discharge  of 
their  duties  by  public,  local,  or  municipal  officers,  actions  on  which, 
except  when  otherwise  directed  by  statute,  may  be  brought  by 
the  people  or  the  State  ;  ^  bonds  running  to  the  people  or  to  the 
State,  conditioned  upon  the  faithful  discharge  of  duties  by  various 
private  or  semi-private  trustees,  or  by  persons  appointed  in  judi- 
cial proceedings  and  the  like,  such  as  those  given  by  adminis- 
trators, executors,  or  receivers  ;  ^*^  those  given  by  the  trustees  of 

1  Harney  v.  Dutcher,  15  Mo.  89.  ^  Hunter  r.  Commissioners  of,  &c.,  10 

2  Hall  V.  Plaine,  14  Ohio  St.  417,  423.  Ohio    St.    515    (county  treasurer's  bond 

3  KcUosg  V.  Sweeney,  1  Lans   3't7.  running  to  the  State) ;  State  v.   Moore, 

4  Minturn  v.  Main,'?  N.  Y.  220,  224 ;  10  Mo.  369  (sheriff's  bond);  Meier  r. 
Bogart  V.  O'Regan,  1  E.  D.  Smith,  590.  Lester,  21    Mo.   112  (constable's   bond)  ; 

^  Armstrong?;.  Vroman,  11  Minn.  220;  Shelby   Co.  v.   Simmonds,  33  Iowa,  345 

McKee  v.  Lineberger,  69  N.  C.  217,  239.  (county  treasurer's  bond  running  to  the 

8  Kenneily  v.  Eilau,  17  Abb.  Pr.  73.  count%). 

T  Houghton  I'.  Lynch,  13  Minn.  «5.  '»  People   v.   Laws,    3   Abb.    Pr.   450  ; 

3  See  sin>ra,  §§  139,  141.  Annett  v.  Kerr,  28  How.  Pr.  324;  People 


TRUSTEE  OF  AN  EXPRESS  TRUST.  215 

an  estate,  although  entirely  for  the  benefit  of  the  persons  having 
an  interest  in  the  estate  ;  ^  bastardy  bonds  ^  and  the  like  ;  bonds 
given  directly  to  a  sheriff  or  other  superior  officer  to  indemnify  a 
deputy  sheriff  or  other  subordinate  officer  against  the  conse- 
quences of  acts  done  in  the  discharge  of  the  latter's  official 
duties  ;  ^  a  bond  given  by  a  town  superintendent  of  common 
schools  to  the  supervisor  of  the  town,  an  action  on  which  must  be 
brought  by  the  supervisor  or  his  successor  in  office.^ 

§  177.  In  all  the  instances  heretofore  mentioned,  the  contract 
has  been  made  with  an  agent  in  his  own  name,  and  the  promise 
given  to  him,  although  the  principal  or  beneficiary  was  known, 
and  even  expressly  designated  and  provided  for  by  the  terms  of 
the  agreement.  The  rule  is  the  same,  and  even  more  emphati- 
cally so,  if  the  principal  or  beneficiary  is,  at  the  time  of  the 
contract,  unknown  or  undisclosed,  or  not  mentioned  in  the  instru- 
ment. When  a  contract,  even  in  writing,  is  made  with  and  by 
an  agent,  and  no  mention  is  made  of  any  principal  or  beneficiary, 
but  the  other  contracting  party  supposes  he  is  dealing  with  the 
former  on  his  own  private  account,  but  in  fact  such  person  is  an 
agent  for  an  undisclosed  principal  and  enters  into  the  agreement 
in  the  course  of  his  agency,  actually  effecting  the  contract  on 
behalf  of  that  superior  behind  him,  the  rule  is  well  settled  that 
the  one  who  was  thus  a  direct  party  to  the  agreement  —  the 
actual  agent  —  may  bring  an  action  upon  it  in  his  own  name,  or 
the  principal  may  sue  in  his  name.^ 

§  178.  I  have  thus  far  considered  only  the  particular  class  of 
trustees  of  an  express  trust  specially  described  in  some  of  the 
codes  as  ''  persons  with  whom  or  in  whose  name  a  contract  is 
made  for  the  benefit  of  others."  There  are  numerous  other  and 
more  properly  designated  classes  of  such  trustees ;  and  whatever 
be  their  nature,  or  the  object  of  the  trust,  they  may,  by  virtue  of 

V.    Townsend,   37   Barb.    520.     The    re-         ^  Erickson  v.  Compton,  6    How.   Pr. 

porter's  head-note  reads  s/w(/W  be  sued  by  471;  Grinnell  v.  Schmidt,  2  Sandf.  706; 

the  people:  this  is  more  tlian  was  decided..  Union  India  Rubber  Co.  v.  Tomlinson,  1 

Baggott  V.   Boulger,  2  Duer,  IGO.     The  E.  D.  Smith,  364;   Van   Lien  w.  Byrnes, 

bond  may  also  be  prosecuted  by  the  per-  1   Hilt.    133 ;  Higgins  v.   Senior,  8  M.  & 

son  interested  and  benefited.  W.  834 ;  Sims  ;;.  Bond,  5  B.  &  Ad.  389, 

1  People  V.  Norton,  9  N.  Y.  176,  179.  393,  per  Lord  Denman.     In  ordinary  con- 

-  People  V.  Clark,  21  Barb.  214.  tracts  made  by  agents  for  their  principals, 

3  Stilwell  V.  Hurlbert,   18  N.  Y.  374,  the  latter  are  the  real  parties  in  interest, 

375.  and  must  sue.     Swift  v.  Swift,  46  Cal. 

*  Fuller  V.  Fullerton,  14  Barb.  59.  266,  269. 


216  CIVIL   REMEDIES. 

this  section  of  the  statute,  muintain  an  action  in  their  own  names. 
They  are  generally  created  or  appointed  by  some  instrument  in 
the  nature  of  a  grant  or  conveyance,  or  they  may  be  appointed  in 
judicial  proceedings  by  a  court.  Although  the  rule  is  simple  and 
peremptory  that  these  trustees  may  sue  without  joining  the  bene- 
ficiaries, the  following  instances  in  which  the  rule  has  been  ap- 
plied may  be  enumerated  :  assignees,  general  or  special,  in  trust, 
to  pay  creditors;^  the  assignees  of  a  contract  in  trust  to  re- 
imburse out  of  the  proceeds  thereof  third  persons  for  advances 
made  ;  ^  trustees  appointed  to  take  and  collect  subscriptions  for 
colleges  and  other  similar  purposes  ;  ^  a  receiver  appointed  in 
another  State;*  the  grantee  of  lands  in  trust  for  the  use  and 
benefit  of  another  is  the  proper  party  to  sue  for  possession  or 
for  damages  b}'  trespass  or  other  injury  ;  ^  a  j)erson  who  agreed 
to  hold  notes  and  a  mortgage  for  the  benefit  of  another,  and  to 
apply  the  proceeds  thereof  when  collected  in  payment  of  a  debt 
owed  by  himself  to  that  other,  may  sue  to  enforce  the  securities ;  ^ 
the  assignee  of  a  stock  subscription,  who  holds  it  for  the  benefit 
of  a  bank,  is  the  proper  party  to  bring  an  action  upon  it;"  a 
person  to  whom  chattels  had  been  transferred  for  the  benefit  of 
a  married  woman  in  trust,  to  permit  her  to  have  exclusive  use 
and  possession,  and  to  dispose  of  them  by  her  direction,  is  the 
jn-oper  party  to  bring  an  action  to  restrain  interference  with  or 
disturbance  of  her  possession.^  It  has  been  held  in  Kentucky 
that  where  a  railroad  company  issued  bonds  which  were  held  by 
many  different  persons,  and  executed  a  mortgage  to  a  trustee  for 
the  purpose  of  securing  such  bonds,  this  trustee,  who  was  the  sole 
mortgagee  named  in  the  instrument,  could  not  maintain  an  action 
in  his  own  name  alone  to  foreclose  the  mortgage  on  account  of  the 
non-payment  of  the  money  due  on  the  bonds,  but  he  must  join  the 
bond-holders  as  parties  plaintiff  with  himself.^  The  correctness 
of  this  decision  may  well  be  doubted  in  the  light  of  the  other 

1  Lewis  r.  Graham,  4  Abb.  Pr.  106;  ^  Goodrich  i'.  Milwaukee,  24  Wise.  422  ; 
St.  Anthony's  Mill  Co.  v.  Vandall,  1  Boardman  y.  Beckwith,  18  Iowa,  292, 295. 
Minn.  240.  t>  Ganlinier  v.  Kellogg,  14  Wise.  G05. 

2  Cummins  v.  Rarkalow,  4  Keyes,  514.  See   Davidson   v.  Elms,  67   N.    C.   228  ; 

3  Slocum   V.  Biirry,  34  How.  Pr.  320;  Tiiompson   v.  Toland,   48  Cal.  99,  114; 
Di.x  V.  Akers,  30  Ind.  431 ;  Musselman  v.  Moorehead  v.  Hyde,  38  Iowa,  382. 
Cravens,  47  Ind.  4.  '  Kimball  r.  Spicer,  12  Wise.  668. 

*  Hunk  V.  St.  John,  29  Barb.  585  ;  per         »  Keed  v.  Harris,  7  Robt.  151. 
contra,  Hope  Life  Ins.   Co.  v.  Taylor,  2         ^  Bardstown,  &c.  II.  R.  v.  Metcalfe,  4 
Robt.  278.  Mete.  (Ky.)  199. 


ACTIONS   BY   PUBLIC   OFFICERS.  217 

cases   above  cited,  which    uniformly   proceed    upon    a  different 
doctrine. 

§  179.  Many  public  officers  are  authorized  by  law  to  bring 
actions  in  their  own  names,  and  by  virtue  of  their  official  char- 
acter, in  respect  of  matters  falling  within  the  scope  of  their 
official  functions.  As  this  subject  is  entirely  regulated  by  special 
statutes,  which  greatly  vary  in  different  States,  and  as  it  is  not 
in  fact  a  portion  of  the  general  civil  procedure,  but  rather  a  mat- 
ter exceptional  and  collateral  thereto,  I  shall  not  attem[)t  any 
discussion  of  the  cases  in  which  such  officers  may  sue,  but  shall 
simply  mention  a  few  decisions  which  may  have  some  general 
interest.  Actions  by  public  officers  suing  as  such  should  be 
brought  in  their  individual  names,  but  with  their  official  titles 
added  ;  ^  but  the  mere  use  of  the  official  title  will  not  be  enough, 
without  the  proper  averments  of  the  official  character  in  the 
pleadings ;  in  the  absence  of  such  averments,  the  title  will  be 
regarded  as  only  a  description  of  the  person.^  In  New  York, 
counties  cannot  sue  nor  be  sued.  All  actions  and  judicial  pro- 
ceedings in  favor  of  or  against  counties,  except  those  which  some 
county  officer  is  expressly  authorized  to  maintain  in  his  own 
name  for  the  benefit  of  the  county,  must  be  brought  by  or  against 
the  "  Board  of  Supervisors  "  of  the  county  named,  as  an  organized 
unit,  and  by  that  designation,  and  not  against  the  supervisors 
individually  ;  3  but  when  the  action  is  by  or  against  the  super- 
visors, not  as  the  immediate  representatives  and  in  the  place  of 
the  county,  it  must  be  brought  by  or  against  them  individually, 
with  their  title  of  office  added.^  The  rule  in  respect  to  towns  in 
New  York  is  different.  They  are  municipal  corporations,  and 
must  sue  and  be  sued  by  their  corporate  name,  except  in  the  few 
cases  where  town  officers  are  expressly  authorized  by  statute  to 
sue  in  their  name  of  office  for  the  benefit  of  the  town.^  In 
accordance  with  this  rule,  where  the  supervisor  and  commissioner 
of  highways  had  entered  into  a  contract  on  behalf  of  the  town, 
which  contained  no  promise  to  or  undertaking  with  themselves, 
as  such  officers,  it  was  held  that  they  could  not  maintain  an 
action  upon  it  in  their  joint  names,  but  the  action  should  have 

1  Paige  V.  Fazackerly,  36  Barb.  392.  *  Wild  v.  Board  of  Supervisors,  9  How. 

2  Gould  V.  Glass,  19  Barb.  179.  Pr.  315,  per  Harris  J. 

3  Hill  V.  Board  of  Supervisors  of  Liv-  ^  Town  of  Duanesburgh  i'.  Jenkins,  46 
ingston  County,  12  N.  Y.  52;  Magee  v.  Barb.  294. 

Cutler,  43  Barb.  239. 


218  CIVIL   REMEDIES. 

been  by  the  town,  as  the  real  party  in  interest.^  The  Secretary 
of  State  for  the  War  Department  of  Great  Britain  was  permitted 
to  sue  in  his  individual  name  to  recover  public  moneys  wliich  had 
been  embezzled  by  a  subordinate  official,  it  being  shown  that  by 
the  British  statute  the  property  was  vested  in  him  as  such  secre- 
tary .^  The  "  Metropolitan  Fire  Department,"  a  commission 
created  by  statute  for  the  city  of  New  York,  is  declared  to  be  a 
quasi  corporation,  capable  of  suing  and  being  sued,  and  not  a  mere 
official  agency  of  the  municipality.^ 

§  180.  Hardl}''  any  attempt  has  been  made  by  the  courts  to 
determine  in  a  general  manner  the  classes  of  persons  who  fall 
within  the  designation  of  "  expressly  authorized  by  statute  "  to 
sue.  The  Supreme  Court  of  Indiana  in  one  case  made  an 
approach  towards  such  an  interpretation.  In  an  action  upon  a 
promissory  note  by  the  assignee  thereof,  his  right  to  sue  was 
denied  by  the  defendant.  The  evidence  tended  to  show  that  he 
was  not  the  real  party  in  interest.  To  meet  this  objection,  he 
invoked  a  prior  general  statute,  which  expressly  provides  that 
indorsees  and  assignees  of  bills  and  notes  may  sue  in  their  own 
names,  and  urged  that  he  was  thus  brought  directlv  within  the 
class  of  "persons  expressly  authorized  by  statute"  mentioned  in 
the  section  of  the  code  under  consideration.  The  court,  however, 
refused  to  adopt  this  construction  of  the  code.  It  said :  "  Is  the 
assignee  of  a  note  who  holds  it  as  such,  without  any  real  interest, 
one  of  that  class  of  persons  here  referred  to  as  being  '  expressly 
authorized  by  statute  to  sue '  ?  or  does  the  provision  have  refer- 
ence to  another  class  of  persons,  such  as  the  guardians  of  an  idiot, 
&c.  ?  We  are  of  the  opinion  that  the  clause  of  the  section  above 
quoted  does  not  have  reference  to  the  rights  of  an  assignee  of  a 
promissory  note,  but  to  such  persons  as  may  be  authorized  to  sue 
in  their  own  names  because  of  holding  some  official  position,  as 
the  president  of  a  bank,  the  trustee  of  a  civil  township,  and  the 
like."  ^  There  have  been  held  embraced  within  the  same  class, 
not  only  the  presidents  and  other  managing  officers  of  joint-stock 
associations  for  business  purposes,  Init  also  similar  officers  of  some 
voluntary  societies  organized  for  purposes  not  connected  with 

1  Palmer  v.  Fort  Plain,  &c.  Plank  R.         '^  Peel  v.  Elliott,  7  Abb.  Pr.  483. 
Co.,  11  N.  Y.  376,  390,  per  Selden  J.  "  A         3  Clarissy  v.  Metropolitan  Fire  Dep., 

town  is  a  political  corporation,  and  suits  7  Abb.  I'r.  n.  s.  352. 
in  its  belialf  must  be  prosecuted  in  the         *  Swift  v.  Ellsworth,  10  Ind.  205,  per 

name  of  the  town."     See  supra,  §  17-1.  Hanna  J. 


PERSONS   AUTHORIZED    BY   STATUTE   TO    SUE.  219 

business,  when  the  action  is  brought  on  behalf  of,  or  in  relation 
to  matters  belonging  to,  the  society,  and  among  other  instances 
the  following:  a  suit  brought  by  the  president  of  a  voluntary 
unincorporated  religious  and  missionary  association  to  recover  a 
legacy  bequeathed  to  it ;  ^  by  the  treasurer  of  a  division  of  the 
Sons  of  Temperance,  a  voluntary  social  organization  ;  ^  by  the 
president  of  a  bank  of  which  he  was  the  nominal  proprietor,  all 
the  contracts  and  transactions  being  in  his  name  as  such  proprie- 
tor;^ by  the  trustee  of  the  "Pittsburg  Trust  Company,"  an 
unincorporated  business  association,  in  an  action  brought  to 
recover  damages  for  negligence  in  not  protesting  a  bill  of 
exchange  belonging  to  such  association,  by  which  the  amount 
thereof  was  lost.*  An  officer  of  the  Bank  of  England  was  per- 
mitted to  sue  in  New  York  upon  a  bill  of  exchange  belonging  to 
the  bank,  by  showing  that  the  statutes  of  England  authorized 
him  to  bring  an  action.^  On  the  other  hand,  it  has  been  held  in 
the  same  State  that  an  action  brought  by  a  person  as  foreman  of 
a  certain  named  fire  company  —  unincorporated  —  could  not  be 
maintained ;  that  the  provisions  of  the  code  and  of  other  statutes 
authorizing  suits  in  the  name  of  officers  of  unincorporated  bodies 
do  not  apply  to  such  societies  as  tire  companies.^  If  the  doctrine 
stated  by  the  Indiana  court  cited  above  be  taken  as  the  correct 
interpretation  of  the  clause,  it  follows  that  the  whole  section  pro- 
vides for  three  classes  of  persons  who  may  sue  in  their  own 
name,  although  not  the  real  parties  in  interest ;  namely, ^rst,  those 
with  whom,  or  in  whose  name,  a  contract  is  made  for  the  benefit  of 
another,  to  whom  the  promise  is  directly  given,  and  who  sue 
because  they  are  the  actual  promisees  ;  seco7idly^  trustees  proper 
of  an  express  trust,  who,  by  virtue  of  being  trustees^  have  an 
interest  in  or  title  to  some  properly  which  is  the  subject-matter 
of  the  trust ;  and,  thirdly^  certain  persons  clothed  with  authority  to 
do  various  acts  for,  or  in  behalf  of,  others,  but  who  are  not  vested 
with  any  interest  in  or  title  to  property,  so  as  to  render  them 

1  DeWitt  V.    Chandler,   11   Abb.  Pr.  »  Burbank  v.  Beach,  15  Barb.  326. 
459   (General  Term).     It  was  held  that          *  Laugldin  v.  Greene,  14  Iowa,  92,  94. 
the   action   might   be   maintained   under  The  plaintiff  was  said  to  be  a  trustee  of 
statutes  of  1848,  1849  ;  citing  Tibbetts  v.  an  express  trust. 

Blood,  21  Barb.  650.  5  Myers     v.    Machado,    6    Abb.    Pr. 

2  Tibbetts  v.  Blood,  21  Barb.  650 ;  ex-     198. 

pressly  holding  that  these  statutes  are  not  ^  Masterson  v.  Botts,  4  Abb.  Pr.  130 
confined  to  business  associations.  (Sp.  T.). 


220  CIVIL   REMEDIES. 

trustees  in  the  strict  meaning  of  that  term,  and  who  are  author- 
ized by  various  statutes  to  maintain  actions  in  the  exercise  of 
their  personal  authority,  such  as  officers  of  voluntary  societies, 
guardians,  or  committees  of  the  person,  and  the  like. 

§  181.  That  executors  and  administrators  can  maintain  actions 
relating-  to  the  estate  in  their  own  names  alone,  is  a  proposition 
too  familiar  and  qlementary  to  require  discussion  or  the  citation 
of  authority.  Although  in  general  a  foreign  executor  or  admin- 
istrator cannot  sue  as  such  in  the  courts  of  another  State  or  coun- 
try than  that  in  which  he  was  appointed,  yet,  if  the  objection  is  not 
raised  by  answer  or  demurrer,  it  is  Wtiived  under  the  codes  of 
procedure ;  that  is,  the  objection  goes  simply  to  the  parties' 
capacity  to  sue,  and  not  to  the  cause  of  action  set  up  in  the  com- 
l^laint  or  petition.^  In  California,  lands  owned  in  fee  by  the  deceased 
do  not  descend  at  once  to  his  heirs  or  pass  to  his  devisees,  but  go 
with  the  personalty  into  the  estate  in  the  hands  of  his  adminis- 
trator or  executor  as  a  part  of  the  assets  to  be  administered 
upon.  Any  action,  therefore,  relating  to  such  land,  —  to  recover 
its  possession,  or  damages  for  injuries  done  to  it,  or  rents,  or  the 
like, —  brought  at  any  time  before  a  final  settlement  of  the  estate 
and  distribution  thereof,  must  be  prosecuted  by  the  administrator 
or  executor  alone.^  In  an  action  by  the  administrator  of  a  mort- 
gagee, brought  to  foreclose  the  mortgage,  the  heir  of  the  mortgagee 
is  not  a  proper  party  to  be  joined  as  a  coplaintiff.  In  California, 
as  in  New  York,  the  mortgage  is  a  mere  security,  incident  and 
collateral  to  the  debt,  and  belongs  wholl}^  to  the  personalty.^ 

§  182.  How  far  general  guardians  of  infants,  testamentary  or 
appointed  by  the  probate  courts,  are  authorized  to  maintain  actions 
in  their  own  names,  relating  to  the  personal  property  of  their 
wards,  depends  rather  upon  the  provisions  of  the  statutes  which 
define  their  powers  and  duties  than  upon  those  of  the  codes. 
The  codes  in  general  can  hardly  be  deemed  to  have  enlarged  their 
powers  in  this  respect.  In  a  few  States,  the  guardian  is  specifically 
mentioned  and  coupled  with  the  executor  and  administrator  in 
the  section  of  the  statute  under  consideration ;  and  this  language 
may  be  interpreted  as  authorizing  him  to  sue  in  respect  of  all 

1  Robbin8  v.  "Wells,  18  Abb.  Pr.  191.        "Wiggins,  23  Cal.  16  ;  Emeric  v.  Penniman, 

2  Curtis   V.   Herrick,      14     Cal.    117 ;     26  Cal.  119. 

Meeks  v.  Halin,  20  Cal.  620;  Grattan  y.'         3  Qrattaa  v.  Wiggins,  23  Cal.  16. 


ACTIONS   BY   GUARDIANS.  221 

property  which  is  under  his  control  by  virtue  of  his  office.^  In 
New  York,  it  has  been  determined  by  the  Supreme  Court  in  a 
vei}^  carefully  considered  case,  the  decision,  however,  being  rested 
upon  a  construction  of  the  Revised  Statutes,  and  not  of  the  code, 
that  the  general  guardian  may  bring  all  actions  in  his  own  name 
respecting  the  personal  property  of  the  ward  and  the  rents  and 
profits  of  his  real  estate .^  This  same  power  is  expressly  conferred 
upon  him  by  the  statutes  of  certain  States.^  On  the  other  hand, 
it  is  held  in  Kentucky  that,  while  the  guardian,  who  has  taken  a 
note  expressly  made  to  himself  as  payee  for  moneys  belonging  to 
the  ward,  may  prosecute  an  action  thereon,  because  the  promise 
is  given  directly  to  him,  he  cannot  sue  in  respect  of  his  ward's 
property  in  general,  since  he  has  no  estate  or  interest  therein  ; 
such  actions  must  be  brought  in  the  name  of  the  infant.^  The 
statutes  which  provide  for  the  appointment  of  guardians  or  com- 
mittees over  the  property  of  lunatics,  confirmed  drunkards,  and 
other  such  persons  not  sui  juris,  generally  confer  upon  them  the 
same  powers  that  are  given  to  the  general  guardians  of  infants, 
and  a  similar  rule  should  therefore  prevail  in  reference  to  their 
prosecution  of  actions.  Although  there  is  some  conflict  in  the 
decided  cases,  yet,  as  these  guardians  or  committees  do  not 
acquire  any  estate  or  interest  in  the  j^roperty  subjected  to  their 
control,  but  only  a  power  of  possession  and  management,  the 
correct  doctrine  upon  principle  would  seem  to  be  that  they  can- 
not maintain  actions  concerning  it  in  their  own  names,  unless 
expressly  authorized  to  do  so  by  statute  ;  other  actions  may  be 
brought  by  them.^ 

1  Tliis  interpretation  is  given  to  the  488,  which  expressly  holds  that  the  com- 

language  of  the   code   by  the    Supreme  mittee  is  a  "  trustee  of  an  express  trust" 

Court  of  Indiana  in  Shepherd  i'.  Evans,  9  within  the  meaning  of  the  code.      The 

Ind.  2G0,  which  holds  that,  by  virtue  of  whole  subject  was  discussed  and  deter- 

tlie  provision,  the  guardian  is  empowered  mined  in  tlie  very  late  case  of  Fields  v. 

to  bring  such  actions  in  his  own  name.  Fowler,  4  N.  Y.  Sup.  Ct.  598.     The  action 

■^  Thomas  v.  Bennett,  56  Barb.   197;  was  brought  by  the  committee  of  the  per- 

Seaton  v.  Davis,  1  N.  Y.  Sup.  Ct.  91  ;  and  son  and  estate  of  a  lunatic  to  set  aside  the 

see   White    v.   Parker,  8   Barb.   48,   52 ;  sale  of  a  farm  made  by  defendant  to  the 

Mebane  v.  Mebane,  66  N.  C.  334 ;  Biggs  lunatic,   to   cancel  the  satisfaction   of  a 

V.  Williams,  66  N.  C.  427.  mortgage  which  had  been   executed  by 

8  See  R.  S.  of  Wise.  ch.  112,  §§  23,  47.  him,  and  also  a  check  which  he  had  given 

*  Anderson  v.  Watson,  3  Mete.  (Ky.)  on  such  sale.     The  action  was  held  to  be 

509.  properly  brought  by  the  committee.     E. 

5  King  V.   Cutts,  24  Wise.  625 ;    Mc-  Darwin  Smith  J.,  in  giving  the  opinion  of 

Killip  V.  McKillip,  8  Barb.  552.      But,  per  the  court,  says  :  "  The  rule  undoubtedly 

contra,  see  Person  v.  Warren,  14  Barb,  was,  and  still  is,  at  law,  where  the  action 


222  CIVIL   REMEDIES. 

SECTION   SIXTH. 
WHO    MAY    BE    JOINED    AS    PLAINTIFFS. 

§  183.  The  following  are  the  provisions  relating  to  the  joinder 
of  parties  plaintiff  in  one  action  found  in  the  various  State  codes, 
and  it  will  be  seen  that  there  is  an  absolute  identity  of  language 
in  all  the  legislation  upon  this  subject.  "  All  persons  having  an 
interest  in  the  subject  of  the  action,  and  in  obtaining  the  relief 
demanded,  may  be  joined  as  plaintiffs,  except  as  otherwise  pro- 
vided in  this  title."  ^  This  is  the  important  section  ;  but  the  fol- 
lowing one  somewhat  enlarges  its  scope  and  effect  in  certain  cases  : 
"  Of  the  parties  to  the  action,  those  who  are  united  in  interest 
must  be  joined  as  plaintiffs  or  defendants ;  but,  if  the  consent  of 
any  one  who  should  have  been  joined  as  plaintiff  cannot  be 
obtained,  he  may  be  made  a  defendant,  the  reason  thereof  being 
stated  in  the  complaint  [petition]."  ^  The  particular  statutory 
rules  relating  to  married  women  as  parties,  and  prescribing  when 
wives  may  sue  alone  or  when  husbands  must  be  joined,  will  be 
stated  in  a  subsequent  portion  of  this  section.  Many  of  these 
special  enactments  are  not  found  in  the  codes  of  procedure,  but 
in  separate  and  independent  legislation. 

§  18-1:.  The  Common-law  Bides.  Before  entering  upon  the 
interpretation  of  these  statutory  provisions,  and  before  discussing 

is  brought  to  assert  the  title  of  the  lunatic  §§  378,  381  ;  Missouri,  art.  1,  §  4  ;  Wiscon- 

to  real  and  personal  property,  it  must  be  sin,  ch.  122,  §  18  ;  Iowa,  §  25-i5 ;  Nebraska, 

brought    in    his   name,    as    held   in   Mc-  §   37  ;  Florida,    §    68 ;    Kentucky,  §    34 ; 

Killip  V.    Mclvillip,    8  Barb.  552."       He  South   Carolina,   §   140;    Nevada,   §    12; 

cites  the  laws  of  1845,  ch.   112,    which  Dacota,  §  70 ;  Oregon,  §  380  :  but  limited 

autliorize  the  committee   to  sue  for  any  to   equitable    actions ;     North    Carolina, 

debt,   clain),   or   demand   transferred    to  §   60;    Idaho,  §  12;    Washington,   §    8; 

them,  or  to  the  possession  and  control  of  Montana,  §  12  ;    Arizona,  §   12  ;   Wyom- 

which  they  are  entitled  ;  also  Gorhani  v.  ing,  §  40. 

Gorham,     3    Barb.   Ch.    32;     Ortley    v.  '^  New   York,  §  119;    Indiana,  §   19; 

Messere,  7  Johns.  Ch.  139,  and  §  111  of  California,   §    382;    Wisconsin,    ch.   122, 

the  code,  and  reaches  tiie  conclusion  that  §    20;    Florida,   §    70;    South    Carolina, 

the  equity  rule  as  to  parties  is  controlling  §  142  ;  Dacota,  §  72  ;  Oregon,  §  381,  but 

in  actions  of  this  kind.     Tlie  decision  in  limited  to  equity  actions;  Nevada,  §  14; 

Person  f.  Warren,   14  Barb.  488,  is  ex-  Ohio,  §  36 ;  Kansas,  §  37 ;  Iowa,  §  2548 ; 

pressly    ajiproved   and    followed.     S.  P.  Nebraska,   §  39 ;    Kentucky,   §  36 ;  Mis- 

Bearss  v.  Montgomery,  46  Ind.  544.  souri,  art.  1,  §  6  ;  North  Carolina,  §  62  ; 

"'  New  York,  §   117;  Ohio,  §  34;  In-  Idaho,   §    14  ;   Washington,  §   8;    Mon- 

diana,  §17;    Kansas,  §   35;    California,  tana,  §  14  ;  Arizona,  §  14 ;  Wyoming,  §  42. 


UNION    OF   PLAINTIFFS  :    COMMOX-LAW   RULES.  223 

the  doctriiie  of  parties  plaintiff  "with  respect  to  their  uniting  or 
severing  in  an  action  in  the  reformed  American  system  of  proced- 
ure, it  will  be  advantageous  and  even  necessar}'  to  state  in  a  brief 
but  comprehensive  manner  the  rules  which  prevailed  at  the  com- 
mon law,  unchanged  by  legislation.  The  common  law,  in 
respect  to  the  union  of  defendants,  divided  liabilities  into  joint, 
joint  and  several,  and  several  ;  in  respect  to  the  union  of  plain- 
tiffs, it  divided  all  rights  into  joint,  and  several.  The  require- 
ments that  all  the  persons  jointly  interested  should  unite  as 
plaintiffs  in  any  action  brought  to  maintain  the  interest,  and  that, 
in  the  case  of  a  several  right,  each  separate  holder  of  it  sliould 
sue  alone,  were  very  peremptory,  and  upon  them  were  based  the 
form,  extent,  and  even  possibility  of  the  judgment  to  be  recovered. 
All  the  possible  occasions  from  which  could  arise  the  two  classes 
of  rights,  joint  or  several,  and  which  could  give  an  opportunity 
for  the  distinction  into  these  two  classes,  are  (1)  contracts  in 
which  the  rights  of  the  obligees,  covenantees,  or  promisees  maybe 
joint  or  several  ;  (2)  wrongs  to  person,  character,  or  property,  not 
consisting  in  the  breach  of  contracts ;  (3)  property  in  land,  in 
respect  of  which  there  may  be  joint  owaiership,  ownership  in 
common,  and  several  ownership ;  (4)  property  in  chattels, 
in  respect  of  which  there  maj-  be  joint  ownership,  ownership 
in  common,  and  several  ownership.  These  are  all  the  occasions 
which  can  give  rise  to  joint  or  several  rights.  But  the  possessors 
of  the  rights  which  spring  into  existence  upon  these  occasions 
ma}'  themselves  be  separated  into  two  classes, —  those  who  hold  of 
their  own  right,  and  those  who  hold  in  a  representative  character 
or  capacity,  as  executors,  administrators,  and  trustees  of  all  kinds. 
To  these  must  also  be  added  the  special  case  of  husband  and 
wife ;  and  it  is  to  be  determined  when  they  should  be  united  as 
plaintiffs,  and  when  the  husband  should  sue  alone.  I  shall  take 
up  these  classes  in  the  order  indicated,  and  shall  state  the  common- 
law  rules  in  reference  to  the  union  or  severance  of  parties  plain- 
tiff in  a  legal  action,  as  laid  down  by  text-writers  of  the  most 
approved  authority,  but  without  any  discussion  of  the  doctrine 
or  illustration  by  examples. 

§  185.  First,  the  rights  ivhich  arise  from  contracts.  When  a 
contract,  either  sealed,  written,  or  verbal,  is  made  with  two  or 
more  persons,  and  their  legal  interest  therein  is  joint,  all  the  obli- 
gees, covenantees,  or  promisees,  if  living,  and  as  many  as  are 


224  CIVIL   REMEDIES. 

living,  must  join  as  plaintiffs,  even  though  the  covenant  or  prom- 
ise to  tliem  is  in  terms  Joint  and  several.  The  interest  spoken  of 
is  not  the  interest  which  will  be  had  in  the  sum  of  money  or 
other  benefit  promised  when  tlie  agreement  is  performed,  but  the 
interest  in  the  contract,  the  legal,  technical  interest  created  by 
the  terms  of  the  very  agreement.^  This  rule  as  to  the  union  of 
parties  plaintiff  in  an  action  brought  upon  a  joint  contract  being 
thus  universal  and  peremptory,  it  becomes  a  matter  of  the  utmost 
importance  to  determine  when  a  contract  is  thus  joint ;  when  the 
rights  of  the  promisees,  or  their  le(/al  interest  in  the  contract,  is 
joint,  and  not  several.  In  general,  if  a  promise  is  made  to  two  or 
more  persons,  the  right  is  presumptively  joint ;  a  several  right  is 
the  exception.  No  express  joint  words,  therefore,  are  necessary ; 
but  some  words  indicating  such  an  interest  must  be  used  to  create 
a  several  right.  A  mere  promise  to  A.  and  B.  always  creates  a 
joint  right,^  even  though  the  share  of  the  money  promised  which 
each  is  to  have  is  designated.'"^  The  following  examples  of  con- 
tracts in  which  the  rights  and  interests  were  held  to  be  joint  are 
given  as  illustrations  of  this  general  doctrine.  Where  one  of  a 
firm  of  bankers  had  loaned  money,  all  the  partners  may  join  in  an 
action  to  recover  it.*  An  agent  of  three  part-owners  of  a  ship 
sold  the  vessel,  and  paid  over  their  respective  shares  of  the  price 
to  two  of  them  ;  it  was  held  that  the  three  must  unite  in  an  action 
to  recover  the  other  share,  payment  of  which  had  been  refused  ; 
the  implied  promise  Avas  to  all  the  owners  jointly.^  A.  conveyed 
land  to  several  persons,  and  in  the  deed  covenanted  with  them, 
"  and  to  and  with  each  and  every  of  them,"  that  he  was  lawfully 
seised  :  all  the  grantees  were  required  to  join  in  an  action  on  this 
covenant.*^  When  one  covenants  with  A.  and  B.  to  pay  a  sum  of 
money  to  A.,  both  must  unite  in  a  suit  to  recover  the  money ; 
there  is  a,  joint  interest  in  the  contract^  although  A.  is  the  only  one 
interested  in  the  benefit  which  is  to  result'from  its  performance.'^ 

1  1  Chitty  PI.  Springfield  ed.  1840,  p.  3  Lane  v.  Drinkwater,  1  C,  INI.  &  R. 

8a;  Eccleston  I'.  Clipsliam,  1  Wm.  Saund.  599;  Byrne  v.  Fitzliugli,   1  C,  M.  &  R. 

153,   n.    1 ;    Anderson   i-.    Martindale,    1  613,  n. 

East,  497,  501  ;  Hill  i-.  Tucker,  1  Taunt.         *  Alexander  v.  Barker,  2  Tyr.  140. 
7  ;  James  v.  Emery,  5  Price,  529 ;  Hatsall  5  Hatsall  v.  Griffith,  4  Tyr.  487. 

V.  Griffith,  4  Tyr.  487  ;  Wright  v.  Post,  6  Slingsby's  Case,  5  Rep.  18  6,  3  Lev- 

3  Conn.  142.  inz,  160,  Dyer,  337. 

'^  Hill  I'.  Tucker,  1  Taunt.  7 ;  King  v.         ">  Anderson    v.    Martindale,    1     East, 

Hoare,  13  M.  &  W.  499,  per  Parke  B. ;  497. 
Yorks  V.  Peck,  14  Barb.  644. 


UNION    OF   PLAINTIFFS:    COMMON-LAW   RULES.  225 

Tlie  interest  of  the  promisees  or  covenantees  is  the  important, 
and,  as  the  rule  is  laid  down  by  the  text-writers  and  by  most  of 
the  cases,  the  sole  criterion  by  which  to  decide  whether  the  right 
is  joint  or  several.  If  this  interest  —  that  is,  the  legal  interest 
in  the  contract — is  joint,  the  right  is  joint ;  if  several,  the  right 
is  several.  It  has  been  said  that  no  language  of  the  agreement, 
indicating  that  the  right  is  to  be  several,  will  avail  when  the 
interest  is  clearly  joint,  and  no  language  will  avail  to  make  the 
right  joint,  when  the  interest  is  clearly  several.^  Some  English 
cases,  however,  have  modified  this  doctrine,  and  have  denied  that 
the  interest  is  to  be  the  sole  criterion,  holding  that  the  express 
language  may  control  the  effect  of  the  interest.^  There  is  no 
such  thing  as  a  joint  and  several  right  as  there  is  a  joint  and  sev- 
eral liability.  It  is  either  several,  so  that  each  of  the  promisees 
must  sue  separatelj' ;  or  joint,  so  that  all  must  sue  together.  The 
parties  never  have  the  option  to  sue  jointl}^  ox  severally  at  their 
pleasure.^  When  a  contract  is  made  with  a  partnership,  all  the 
members  of  the  firm  must  join  ;  even  when  the  promise  is  nomi- 
nally to  one  of  the  partners  alone,  if  it  is  intended  for  the  benefit 
of  all,  all  must  sue.*  A  dormant  partner,  however,  need  not  be 
joined.^ 

§  186.  Where  the  legal  interest  in  the  contract  or  the  cause 
of  action  is  several,  the  covenantees  or  promisees  must  sue 
separate!}",  although  the  agreement  is  in  its  terms  joint.^  The 
following  are  some  illustrations  of  contracts  in  which  the  inter- 
ests and  the  consequent  rights  of  action  are  several.  If  a  man 
demises  Whiteacre  to  A.  and  Blackacre  to  B.,  and  covenants  wdth 

1  See  the  foregoing  cases  ;  also  Hop-  Rolfe  B.     Most  of  these  cases  arose  upon 

kinson  v.  Lee,  6   Q.  B.  971,972,  per  Lord  covenants,  but  the  same  rules  certainly 

Denman ;  Withers  v.  Bircham,  o  B.  &  C.  apply  to  simple  contracts. 

254;  Servante  y.  James,  10  B.  &  C.  410.  *  1  Ch.    Tl.,    same    ed.,  p.    11;  Gar- 

^  Sorsbie  v.  Park,  12  M.  &  W.  146,  157,  rett  i'.  Handley,  4  B.  &  C.  664. 
per  Lord  Abinger,  p.  158,  per  Parke  B. ;  *  Clark  v.  Miller,  4  Wend,  628;  Clark- 
Mills   V.  Ladbroke,   7  Man.  &   Gr.   218;  son  i».  Carter,  3  Cow.  85;  Lord  v.   Bald- 
Bradburne  v.  Botfield,  14  M.  &  W.  559,  win,  6  Pick.  348,  352 ;  Leveck  v.  Shaftoe, 
572  ;  Keightley  v.  Watson,  3  Exch.  716.  1  Esp.  468;  Lloyd  v.  Archbowle,  2  Taunt. 

3  Slingsb;)'s  Case,  5  Rep.  19  a  ;  Eccle-  324. 

ston    V.    Clipsham,    1  Wm.  Saund.  153;  ''  Slingsby's  Case,  5  Kep.  18^,-  Eccle- 

Petrie  v.  Bury,  3  B.  &  C.  353;  Scott  v.  ston  r.  Clipsham,  1  Wm.  Saund.  153,  n.  1 ; 

Godwin,    1    B.    &    P.    67,   71  ;  James  v.  James  v.  Emery,  5  Price,  529  ;  James  v. 

Emery,  5  Price,  533,  per  Gibbs  C.  J. ;  Emery,  8  Taunt.  245 ;  Dunham  i-.  Gillis,  8 

Foley  V.  Addenbroke,  4  Q.  B.  197 ;  Keight-  Mass.  462  ;  Baker  v.  Jewell,  6  Mass.  460 ; 

ley  V.  Watson,  3  Exch.  721,  per  Pollock  Gould  v.  Gould,  6  Wend.  263;  1  Ch.  PL, 

C.  B.,  p.  723,  per  Parke  B.,  p.  726,  per  same  ed.,  p.  10. 

15 


226  CIVIL    REMEDIES. 

them  and  with  each  of  them  —  or  even,  it  seems,  if  he  covenants 
with  them  in  express  terms  jointly  —  that  he  is  the  owner  of  the 
closes,  each  must  sue  separately  in  resjiect  of  his  distinct  inter- 
ests ;  they  cannot  sue  jointly,  for  they  have  no  joint  or  entire 
interest  in  the  same  subject-matter.^  If  a  person  promises  A.  and 
B.  to  pay  a  different  sum  to  each,  although  the  mere  terms  of  the 
promise  are  joint,  the  interest  is  several,  and  each  must  sue  sep- 
arately.^ A  fortiori,  if,  instead  of  one  promise  to  all,  there  are 
separate  promises  of  distinct  sums  to  each  in  the  same  instru- 
ment, the  interests  and  consequent  rights  will  be  several.'^  When 
three  persons  were  assignees  of  a  bankrupt,  and  two  of  them  paid 
one-half  each  of  the  attorney's  bill,  it  was  held  that  they  could 
not  maintain  a  joint  action  against  the  third  for  his  proportion  of 
the  mone}'  paid  ;  each  was  interested  alone  in  the  implied  prom- 
ise to  refund  to  him  a  portion  of  the  money  he  had  advanced.* 
But  if  the  two  had  borrowed  on  their  joint  account  the  money 
which  they  paid,  or  if  their  attorney  had  paid  it  for  them  on 
their  joint  account,  they  w^ould  have  had  a  common  interest  in 
the  entire  sum  paid,  and  in  the  implied  promise  to  repay,  and 
could  have  maintained  a  joint  action  for  it.^ 

§  187.  Joint  owners  of  land  must  sue  jointly  upon  any  con- 
tract relating  to  the  estate.^  When  owners  in  common,  even  if 
holding  by  distinct  titles,  jointly  let,  reserving  an  entire  rent, 
they  may  and  perhaps  must  unite  in  an  action  to  recover  the 
rent ; '  but  if  the  rent  be  reserved  to  them  separately  in  distinct 
parts,  they  must  sue  separately.^ 

§  188.  If  of  the  joint  obligees,  covenantees,  or  promisees,  one 
dies,  the  action  must  be  brought  by  the  survivors  ;  the  execu- 
tors or  administrators  of  the  deceased  cannot  be  joined  as  co- 
plaintiffs,  nor  can  they  sue  separately.  If  all  die,  the  suit  must 
be  by  the  personal  representatives  of  the  last  survivor.     If,  how- 


'  Cases  cited  in  last  note,  and  Withers         "^  1   Ch  PI.,  same   ed.,    p.    13  ;     Bac. 

V.  Bircham,  3  B.  &  C.  254.  Abr.  Joint  Tenants,   K  ;    Scott   v.  God- 

2  Ibid.  win,  1  B.  &  P.  67. 

3  Servante  r.  James,  10  B.  &  C.  410;  '1   Ch.  PI.,  same  ed.,  p.  13;  Martin 
Ford  r.  Bronaugh,  11  B.  Mon.  14.  v.  Crompe,  1    Lord    Raym.    340;     Har- 

*  Brand  i;.  Boulcott,  3  B.   &  P.   235.  rison    v.    Bamby,  5   T.    K.    249;    Powis 

See  Yates  v.  Froot,  12  Johns.  1  ;  Gould  v.  v.  Smith,  5  B.  &  A.  851  ;  Wilkinson  v. 

Gould,  8  Cow.  168.  Hall,  1  Bing.  N.  C.  713. 

6  1    Ch.  PI.,    same    ed.,    p.   11  ;    Os-         8  ibid.     Bac.  Abr.  Joint  Tenants,  K. 
borne  v.   Harper,    5    East,    225 ;    Dore- 
mu8  V.  Selden,  I'J  Johns.  213,  217. 


UNION    OF   PLAINTIFFS  :    COMMON-LAW   RULES.  227 

ever,  the  right  is  several,  the  executors  or  administrators  of  the 
decedent  ma}'^  bring  an  action,  although  the  others  are  living.^  The 
consequences  of  a  non-compliance  with  these  rules  were  at  the 
common  law  very  serious.  If  a  plaintiff  omitted  to  join  another 
as  coplaintiff  who  should  have  been  joined,  or  if  persons  were 
improperly  joined  as  coplaintiffs,  and  the  error  appeared  upon 
the  face  of  the  pleadings,  it  was  fatal  on  demurrer,  or  in  arrest 
of  judgment,  or  on  a  writ  of  error.  If  the  error  did  not  appear 
on  the  face  of  the  pleadings,  the  defendant  might  take  advantage 
of  it  either  by  a  plea  in  abatement,  or  by  a  motion  for  a  nonsuit 
at  the  trial,  or  by  proof  under  the  general  issue.^ 

§189.  Second.  Rights  ivhicli  arise  from  Torts  to  Property,  Per- 
son^ or  Character.  Persons  jointly  entitled,  or  having  a  joint  legal 
interest  in  the  property  or  other  rights  affected  by  the  tort,  must 
join  in  actions  brought  to  recover  damages  therefor.  On  the  other 
hand,  when  the  interest  and  right,  and  the  damage  are  both  several, 
each  person  who  has  suffered  the  wrong  must  sue  separately.  In 
accordance  with  this  principle,  two  or  more  plaintiffs  cannot,  in 
general,  sue  for  torts  to  the  person  or  character,  such  as  assaults 
and  batteries,  false  imprisonments,  libels,  slanders,  and  the  like. 
But  if  a  joint  right  is  invaded  by  a  personal  wrong,  and  joint 
damage  is  done  thereb}',  the  injured  parties  may  unite  in  the 
action ;  as,  for  example,  partners  may  sue  jointly  for  a  libel  or 
slander  upon  the  firm  as  such,  by  which  injury  is  done  to  the 
common  business.^ 

§  190.  Joint  owners  and  owners  in  common  of  personal  prop- 
erty must  unite  in  actions  brought  to  recover  damages  for  any 
injuries  to  it,  or  for  the  wrongful  taking  or  conversion  of  it,  and 
in  actions  to  recover  its  possession ;  but  j)ersons  having  a  several 
interest  must  sue  separately.^  Joint  owners  of  land  must  unite 
in  all  real  actions  relating  to  it,  and  also  in  all  personal  actions. 
Owners  in  common  must,  however,  in  general,  sever  in  real 
actions  to  recover  their  interests  in  the  land,  and  in  the  action  of 
ejectment ;  but  in  personal  actions  for  injuries,  such  as  trespass, 

1  1  Ch.  PI.,  same  ed.,  p.  19;  Rolls  v.  6  Mass.  460;  Converse  v.  Symmes,  10 
Yate,  Yelv.  177  ;  Anderson  v.  Martindale,  Mass.  377  ;  Dob.  v.  Halsey,  16  Johns.  34. 
1  East,  497;  Stowell's  Administrator  v.  3  1  Ch.  PL,  same  ed.,  p.  64 ;  Cole  w. 
Drake,  3  Zabr.  310 ;  Shaw  v.  Sherwood,  Turner,  6  Mod.  149  ;  Gazynski  v.  Col- 
Cro.  Eliz.  729.  burn,  11  Cush.  10. 

2  1  Ch.  PI.,  same  ed.,p.  13;  Armine  v.         *  1  Ch.  PI.,  same  ed.,  p.  65. 
Spencer,  4  Wend.  406;  Baker  v.  Jewell, 


228  CIVIL   REMEDIES. 

nuisance,  and  the  like,  they  may  join.  It  was  the  rule  in  New 
York,  however,  that  tenants  in  common  might  declare  in  eject- 
ment upon  a  joint  demise.^  In  all  these  actions  ex  delicto^  for 
torts  to  person  or  property,  the  objection  to  a  wori-joinder  of 
proper  parties  plaintiff,  when  it  existed  at  all,  could  only  be 
taken  advantage  of  by  a  plea  in  abatement,  or  by  an  apportion- 
ment of  damages  at  the  trial ;  the  defendant  could  not  demur, 
nor  move  for  a  nonsuit,  nor  prove  the  defect  under  the  general 
issue.  If,  however,  the  objection  was  to  the  mis-joinder  of  im- 
proper parties  plaintiff,  the  same  rules  prevailed  as  in  actions  ex 
contractu? 

§  191.  Third.  The  Case  of  Husband  and  Wife.  As  the  wife's 
chattels  became  absolutely  the  property  of  the  husband  at  the 
marriage,  actions  for  the  recovery  of  such  chattels  belonging  to 
the  wife  prior  to  the  marriage  must  be  brought  in  the  name  of 
the  husband  alone.  Things  in  action  which  had  belonged  to  the 
wife  did  not  become  the  absolute  property  of  the  husband  by  the 
mere  fact  of  marriage,  and  if  he  died  before  reducing  them  to 
his  possession,  and  before  her  death,  they  survived  to  her.  The 
rule  therefore  was,  that  in  actions  upon  such  demands  the  hus- 
band and  wife  must  unite  as  coplain tiffs,  as  also  in  an  action  to 
recover  rent  which  had  accrued  to  her  before  the  marriage.  For 
rent  or  other  cause  of  action  arising  during  the  coverture  on  a 
lease,  or  on  any  other  contract  relating  to  the  wife's  land,  the 
parties  might  join,  or  the  husband  might  sue  alone  at  his  elec- 
tion.^ In  actions  for  injuries  to  the  wife's  person  or  to  her  prop- 
erty, real  or  personal,  done  before  the  marriage,  when  the  cause 
of  action  would  survive  to  her  after  his  death,  both  must  join  as 
plaintiffs  ;  except,  as  has  just  been  said,  in  detinue  or  replevin  for 
chattels  which  had  belonged  to  the  wife,  but  which  had  become 
the  husband's  by  an  absolute  ownership,  he  must  sue  alone.  For 
any  personal  injuries  to  the  wife  during  the  marriage,  —  assault 
and  battery,  false  imprisonment,  libel,  slander,  and  injuries 
through  negligence  or  want  of  skill,  and  the  like,  —  she  could 
never  maintain  an  action  in  her  own  name  ;  the  husband  and 
wafe  must  sue;  jointly  to  recover  damages  for  the  wrong  inflicted 
upon  her.,  for  her  sufferings  bodily  and  mental,  while  for  damages 
sustained  by  him  by  reason  of  the  deprivation  of  her  society,  or 

1  1  Ch.  n.,  same  ed.,  p.  Go.  2  ibid.  p.  66. 

3  Ibid.  pp.  28,  29. 


COMMON-LAW   THEORY   OP   JOINT   RIGHT.  229 

by  reason  of  the  expenses  to  which  he  was  put,  and  the  like, 
the  husband  must  sue  alone. ^  Finally,  for  torts  committed  to 
the  wife's  personal  property  during  the  marriage  the  husband  only 
could  sue  ;  both  must  unite  in  real  actions  or  in  ejectment  to 
recover  her  lands  ;  while  in  actions  to  recover  damages  for  torts 
done  to  her  lands  during  the  coverture,  the  wife  might  be  joined 
as  a  coplaintiff,  or  the  husband  might  sue  alone.^ 

§  192.  The  foregoing  rules  of  the  common  law,  although 
arbitrary  and  technical  in  the  highest  degree,  and  although  sup- 
ported only  by  that  sort  of  reasoning  in  which  the  old  law  so 
much  delighted,  and  Avhich  consisted  in  the  repetition  of  verbal 
formulas  without  any  real  meaning,  were  maintained  and  enforced 
without  exception,  and  with  little  or  no  variation  until  the  adop- 
tion of  the  codes  of  procedure  in  the  several  States.  The  com- 
mon law,  it  is  plain,  conceived  of  a  joint  right  as  a  very  peculiar 
and  very  important  matter  ;  it  was  one  individual  entity,  not 
an  assemblage  of  the  individual  rights  belonging  to  the  several 
persons  who  held  it.  In  fact,  according  to  the  strict  legal  notion, 
there  was  no  such  individual  right  in  any  one  of  the  joint 
holders.  This  is  apparent  from  the  primitive  rule  of  the  common 
law  as  to  survivorship.  According  to  that  rule,  if  A.,  B.,  and  C. 
held  a  joint  right  arising  even  from  contract,  and  B.  died,  his 
whole  interest  and  claim  Avas  ended,  and  nothing  passed  to  his 
personal  representatives.  It  was  not  simply  the  case  of  survivors 
holding  and  suing  for  the  benefit  of  the  deceased's  estate  ;  the 
survivors  held  and  sued  for  their  own  use  alone  ;  all  right  was 
centred  in  them  ;  where  a  single  survivor  remained  and  he  died, 
as  the  entire  ownership  or  right  of  action  had  been  collected  in 
him,  so  it  passed  to  his  administrators  or  executors  as  part  of 
his  estate.  Equity  did,  it  is  true,  afterwards  change  this  doc- 
trine in  respect  of  rights  of  action  arising  from  contract,  and 
conferred  upon  the  estate  of  the  decedent  who  had  been  jointly 
interested  with  the  living,  a  share  in  the  contract  or  in  its 
proceeds,  and  made  the  survivors  accountable  to  the  represent- 
atives of  such  estate ;  but  this,  it  should  be  remembered,  was  a 
radical  innovation  upon  the  ancient  integrity  of  the  common  law. 
Combining  the  legal  and  the  equitable  doctrines  upon  this  sub- 
ject-matter as  they  stood  prior  to  the  codes,  and  the  result  was 
the  possession  of  an  undivided  interest  by  the  estate  of  the 
1  1  Ch.  PI.,  same  ed.,  p.  73.  2  ibid.  p.  74. 


230  CIVIL   REMEDIES. 

decedent,  wliich  eqiiit}'  created  and  alone  protected  by  a  direct 
action,  authorized  to  be  brought  by  his  personal  representatives  ; 
the  surviving  covenantees  or  promisees,  on  the  other  hand,  could 
alone  maintain  actions  in  courts  of  law  as  though  they  were  the 
sole  owners  of  the  demand,  but  at  the  same  time  they  could  be 
required  to  account,  and  to  jiay  over  to  the  executors  or  adminis- 
trators of  their  deceased  copromisee  the  share  of  the  proceeds 
equitably  belonging  to  his  estate. 

§  193.  The  rules  in  regard  to  parties  and  those  in  regard  to 
the  forms  of  juclgment  reacted  upon  each  other.  The  joint  right 
being  conceived  of  as  a  single  entity,  although  residing  in  two  or 
more  persons,  the  judgment  must  establish  or  defeat  it  as  a  whole  ; 
the  notion  of  severing  it  and  establishing  a  part  in  favor  of  cer- 
tain plaintiffs,  and  defeating  a  part  as  against  certain  other  plain- 
tiffs, could  not  be  entertained,  and  was  violently  opposed  to  all 
the  common-law  theories.  Exactly  the  persons  in  whom  collec- 
tively the  legal  right  resided,  no  more  and  no  less,  must  be  united 
as  plaintiffs,  or  else  the  proceeding  would  wholly  fail.  The  rea- 
son repeated  from  court  to  court,  and  solemnly  put  forth  as  the 
ground  of  this  common-law  rule,  was,  that  all  persons  jointly 
interested  must  unite  as  plaintiffs,  and  no  one  of  them  should  be 
permitted  to  sue  alone,  because  otherwise  the  defendant  would 
be  exposed  to  two  or  more  judgments  and  recoveries  for  the  same 
demand,  which  would  be  manifestly  unjust.  This  formula  was 
gravely  repeated  by  the  judges,  and  at  the  same  time  each  one  of 
the  separate  parties  to  a  several  contract  was  permitted  to  bring 
a  distinct  action,  and  to  recover  a  judgment  for  the  whole  de- 
mand and  costs,  the  court  providing,  however,  that  there  should 
be  but  one  payment  and  satisfaction  of  the  claim.  What  it  was 
thus  perfectly  easy  to  do  in  the  case  of  a  several  right,  was 
equally  practicable  in  the  case  of  a  right  called  joint ;  and  the 
judges  proved  the  utter  emptiness  of  their  reasoning  by  permit- 
ting a  proceeding  in  the  one  instance  which  they  asserted  to  be 
impossible  in  another.  In  fact,  in  every  instance  of  several 
rights  against  the  same  defendant,  or  of  a  several  liability  due 
from  two  or  more  defendants,  the  common-law  courts  allowed  as 
many  actions  as  there  were  plaintiffs  in  the  one  case,  and  as  there 
were  defendants  in  the  other,  and  protected  the  rights  of  all  the 
parties  with  justice  and  equality  by  controlling  the  executions 
and  permitting  but  one  enforcement  and  satisfaction  of  the  actu- 


COMMON-LAW  THEORY   OF  JOINT   RIGHT.  231 

ally  single  demand.  This  practice  demonstrates  the  worthless- 
ness,  —  the  utter  want  of  any  foundation  of  fact,  —  of  the  argu- 
ment uniformly  urged  against  the  possibility  of  allowing  separate 
actions  by  persons  clothed  with  joint  rights;  the  argument  was  a 
mere  formula  of  words,  and  nothing  more.  The  same  is  equally 
true  of  the  common-law  doctrine  respecting  survivorship.  When 
courts  of  equity  introduced  the  notion  that  the  right  does  not 
belong  alone  to  the  survivors  of  joint  promisees,  but  is  shared  also 
by  the  estate  of  the  deceased  party,  they  abolished  the  ancient 
dogma  in  fact,  although  this  result  was  not  openly  proclaimed  by 
them,  but  was  described  by  the  maxim,  "  Equity  regards  joint 
rights  as  joint  and  several."  As  soon  as  the  original  doctrine 
Avas  changed,  and  it  came  to  be  admitted  that,  upon  the  death  of 
one  or  more  joint  covenantees,  obligees,  or  promisees,  the  entire 
right  did  not  remain  in  the  survivors,  there  was  nothing  whatever 
in  the  nature  of  the  relation  which  forbade  the  uniting  of  the 
survivors  and  the  personal  representatives  of  the  deceased  as  co- 
plaintiffs  in  the  same  action  to  enforce  the  right,  or  which  forbade 
the  personal  representatives  from  suing  alone  in  courts  of  law. 
If  we  examine  in  this  manner  all  the  so-called  judicial  reasoning 
which  was  repeated  by  judge  after  judge  from  an  early  day  in 
support  of  the  common-law  rules  concerning  parties  and  concern- 
ing the  forms  of  judgments  as  dependent  upon  the  parties,  we 
shall  find  that  it  simpl}^  lacks  the  basis  of  fact,  since  the  very  pro- 
ceedings and  acts  which  it  assumes  or  declares  to  be  impossible 
have  since  been  adopted  and  practised  without  the  slightest  in- 
convenience. For  examjile,  the  common-law  judges  asserted  that 
]3ersons  having  a  joint  right  of  action  could  not  sue  separately, 
because  otherwise  the  debtor  would  be  subjected  to  cumulative 
recoveries ;  but  such  severance  is  jiermitted  in  manj-  States,  and 
is  a  matter  of  daily  occurrence,  wdthout  any  practical  harm  to 
defendants.  The  common-law  judges  denied  the  possibility  of  the 
surviving  joint  creditors  and  the  representatives  of  the  deceased 
being  united  as  plaintiffs  in  an  action  on  the  demand  ;  but  such  a 
joinder  of  parties  is  authorized,  and  found  to  be  in  every  respect 
practicable.  Again,  the  common-law  courts  said  that  a  misjoin- 
der of  plaintiffs  in  a  suit  brought  upon  a  joint  contract  must  be 
fatal  to  au}^  recovery,  because  it  was  impossible  for  the  judgment 
to  be  divided  and  to  be  rendered  against  the  defendants  in  favor 
of  some  plaintiffs,  and  in  favor  of  the  same  defendants  against 


232  CIVIL   REMEDIES. 

the  other  phxintiffs  ;  l)iit  in  fact  such  a  judgment  is  just  as  possi- 
ble in  the  case  of  contracts  as  in  that  of  torts,  and  is  a  familiar 
feature  of  the  reformed  procedure  in  many  of  the  States.  The 
common-law  rules  relating  to  parties  and  to  the  rendition  of 
judgments,  as  affected  by  the  state  of  the  i)arties,  are  thus  shown 
to  have  been  technical  and  arbitrary  in  the  highest  degree  ;  the 
penalties  for  their  violation  were  extremely  onerous,  amounting 
in  most  instances  to  an  absolute  denial  of  justice,  while  the  rea- 
sons upon  Avhich  they  were  based  were  a  mere  form  of  empty 
words,  convejang  no  real  meaning,  and  resting  upon  no  founda- 
tion of  actual  fact.  The  system,  like  much  else  of  the  ancient 
common  law,  was  the  result  of  severely  logical  deductions  from 
premises  which  had  no  real  existence  —  no  existence  except  in 
the  imagination  of  the  judges  who  adopted  them.  The  strictly 
logical  methods  which  the  schoolmen  of  the  middle  ages  were 
accustomed  to  employ,  were  taken  and  applied  bodily  in  the  prac- 
tical administration  of  justice ;  from  the  use  of  a  single  word 
alone,  such  as  "joint"  or  "several,"  rules  were  deduced  by  which 
the  legal  rights  of  suitors  were  determined  without  the  slightest 
concern  for  or  reference  to  the  requirements  of  justice  and  the 
equities  of  the  particular  case. 

§  194.  The  Fundamental  Principles  of  the  Meformed  Procedure  ; 
the  General  Intent  of  the  Legislature  in  its  Adoption.  With  the 
foregoing  statement  in  outline  of  the  common-law  rules  as  to 
parties  plaintiff,  the  fii'st  questions  which  suggest  themselves,  and 
demand  a  full  discussion,  are:  How  far  have  those  rules  been 
abrogated  or  modified  by  the  provisions  contained  in  the  codes  of 
procedure  ?  What  is  the  interpretation  to  be  put  upon  those 
provisions  ?  What  was  the  general  intention  of  the  legislature, 
and  how  far  has  that  intention  been  embodied  in  the  statute  so 
as  to  produce  a  practical  result  in  the  administration  of  justice  ? 
The  nature  and  extent  of  the  change  must  depend  upon  the 
legislative  intent  expressed  in  a  manner  sufficiently  clear  and 
positive  to  effect  an  alteration  in  the  former  system.  It  must,  of 
course,  be  assumed  at  the  outset  that  these  doctrines  and  rules  of 
the  common  law  still  remain  in  full  force,  except  so  far  as  they 
have  been  abolished  b}'^  the  reformatory  legislation,  and  others 
substituted  in  their  stead.  It  may  be  demonstrated  that  the  an- 
cient rules  rest  upon  no  basis  of  principle,  and  that  the  reasoning 
which  supported  them  is  fallacious ;  all  this,  however,  would  not 


GENERAL  THEORY  AND  INTENT  OF  THE  CODES.       233 

of  itself  work  their  destruction.  They  had  become  established 
as  positive,  peremptory  regulations,  binding  upon  the  courts  as 
though  enacted  by  the  legislature,  and  nothing  but  the  legislative 
authority  exercised  in  the  form  of  a  statute  would  avail  to  abolish 
them.  I  shall,  therefore,  endeavor  to  discover,  if  possible,  the 
legislative  intent,  and  shall  seek  for  it  first  in  the  language  of  the 
codes. 

§  195.  It  must  be  conceded  at  once  that  there  is  no  repeal  or 
modification  of  these  common-law  rules  in  detail ;  the  require- 
ments of  the  old  law  as  to  joint  and  several  rights,  and  the  union 
or  severance  of  the  parties  holding  such  rights,  are  not  in  any 
express  manner  referred  to.  It  should  also  be  carefully  observed 
—  and  the  fact  is  one  of  great  practical  importance  —  that  the 
provisions  in  the  various  codes  relating  to  parties  plaintiff  are  not 
so  full,  minute,  and  express  as  those  relating  to  parties  defendant. 
Even  in  those  State  codes  where  the  common-law  distinctions 
between  joint,  joint  and  several,  and  several  liabilities  are  utterly 
abolished,  and  the  practical  requirements  as  to  the  union  or  sev- 
erance of  parties  defendant  based  upon  them  are  wholly  swept 
away,  there  is  no  corresponding  express  legislation  as  to  the  dis- 
tinctions between  joint  and  several  rights  and  the  union  or  sev- 
erance of  plaintiffs.  This  difference  in  the  mode  of  treatment 
ma}'  be  made  the  ground  —  and  has  been  by  many  judges  —  of 
inferring  that  the  legislature  intended  to  leave  the  ancient  legal 
doctrines  as  to  plaintiffs  untouched,  and  to  confine  its  work  of 
reform  to  the  case  of  defendants.  The  legislative  intent,  thel'e- 
fore,  whatever  it  may  be,  must  be  found  in  the  few  general  pro- 
visions quoted  at  the  commencement  of  the  present  section,  and 
in  the  subsequent  provisions  which  regulate  the  rendition  of 
judgments,  so  far  as  the  same  depends  upon  or  is  connected  with 
the  parties  to  an  action.  Referring  to  these  provisions,  it  is  plain 
that  their  language  is  general,  inclusive,  without  exception,  and 
applying  alike  to  all  kinds  and  classes  of  actions.  Whatever 
doctrines  in  reference  to  parties  plaintiff  the  legislature  has 
adopted,  whatever  regulations  it  has  established,  its  intention,  as 
shown  by  the  language  of  all  the  codes,  but  one  or  two,  is  to 
apply  them  equally  to  legal  and  to  equitable  actions.  No  excep- 
tion being  made,  nor  even  suggested,  the  courts  cannot,  unless  by 
an  act  of  positive  legislation,  by  an  act  of  direct  usurpation,  create 
an  exception,  and  say  that  these  general  terms  were  intended  to 


234  CIVIL   REMEDIES. 

apply  to  eqnital)le  suits  alone,  while  legal  actions  were  intended 
to  be  left  outside  of  their  scope  and  effect. 

§  106.  These  statutory  provisions  themselves  are  confessedly  an 
enactment,  Avith  hardl}'  a  verhal  change,  of  the  general  principles 
long  ago  established  by  courts  of  equity  for  the  regulation  of  the 
parties  plaintiff  in  suits  pending  before  them.  The  legislature 
has,  therefore,  in  a  very  brief  but  comprehensive  form,  adopted 
the  equitable  doctrine,  and  has  applied  it  to  the  civil  action  re- 
quired to  be  used  in  the  enforcement  of  all  rights  and  the  pursuit 
of  all  remedies,  whether  legal  or  equitable.  This  proposition 
cannot  be  denied,  without  denying  to  the  language  of  the 
statute  4ts  plain  meaning  and  ordinary  significance  and  force. 
The  practical  question,  then,  arises  at  once.  How  far  is  this 
equitable  doctrine  inconsistent  with  the  positive  rules  as  to  par- 
ties plaintiff  in  legal  actions,  long  established  as  a  part  of  the 
common-law  procedure  ?  To  what  extent  does  it,  as  thus  gen- 
erally stated,  necessarily  abrogate  or  modify  these  special  rules? 
That  some  change  is  wrought,  if  we  adhere  to  the  simple  lan- 
guage, is  ver}'  manifest.  For  example,  the  common  law  required 
that  all  partners,  or  other  joint  contractors,  should  unite  as  plain- 
tiffs, and  admitted  no  ordinary  exception  or  excuse  for  the  non- 
joinder. The  new  procedure,  after  requiring,  as  did  the  common 
law,  that  all  those  parties  "  united  in  interest  must  be  joined  as 
plaintiffs,"  adds,  "  but  if  the  consent  of  any  one  who  should  have 
been  joined  as  plaintiff  cannot  be  obtained,  he  may  be  made  a 
defendant,  the  reasons  being  stated  in  the  complaint  or  petition." 
The  practice  permitted  by  this  clause  was  familiar  to  courts  of 
equity,  but  was  utterly  unknown  in  courts  of  law.  Here,  how- 
ever, it  is  applied  to  all  actions  ;  no  exception  is  suggested  ;  and 
if  we  follow  the  plain  language  of  the  codes,  this  important  alter- 
ation is  made  in  the  ancient  legal  rules  regulating  the  parties 
plaintiff. 

§  197.  Assuming  that  the  provisions  in  relation  to  plaintiffs 
are  an  enactment  in  a  statutory  form  of  the  general  equitable 
doctrine  in  regard  to  the  same  subject,  and  that,  as  they  stand  in 
the  codes,  they  equally  embrace  within  their  scope  actions  of  all 
kinds,  legal  and  equitable,  and  giving  full  force  to  their  language, 
they  do  not  abrogate  but  rather  confirm  a  large  portion  of  the 
common-law  rules,  those,  I  mean,  which  required  all  persons  jointly 
interested  to  be  united  as  plaintiffs.     The  general  requu-ements, 


GENERAL  THEORY  AND  INTENT  OF  THE  CODES.       235 

"all  persons  having  an  interest  in  the  subject  of  the  action,  and 
in  obtaining  the  relief  demanded,  may  be  joined  as  plaintiffs,"  and 
"  those  who  are  united  in  interest  must  be  joined  as  plaintiffs," 
plainly  include  the  case  of  persons  "  having  an  interest  in  the 
subject-matter,"  or  "  united  in  interest "  by  virtue  of  their  being 
joint  obligees,  covenantees,  or  promisees  at  law,  as  well  as  the 
case  of  persons  having  some  common  equitable  interest.  The 
two  sections  of  the  codes  from  which  I  have  quoted  do  not 
contemplate  nor  permit  a  severance  among  parties  plaintiff  when 
the  old  law  required  a  joinder  ;  the  changes  introduced  by  them 
rather  tend  in  the  opposite  direction,  and,  taking  their  language 
simply  as  it  stands,  they  would  seem  to  allow  the  uniting  of  par- 
ties plaintiff  in  many  cases  where  such  union  was  forbidden  in 
legal  actions  ;  as,  for  example,  the  uniting  of  survivors  of  joint 
promisees  and  the  personal  representatives  of  those  deceased.  In 
fact,  the  practical  rule  of  equity  in  regard  to  suits  by  persons 
jointly  interested,  or  having  a  joint  right,  was  the  same  as  that 
which  prevailed  at  law,  with  the  single  exception  or  addition 
which  provided  for  the  case  of  a  refusal  by  one  or  more  of  the 
joint  holders  of  the  right  to  unite  with  their  fellows  as  plaintiffs. 
In  equity,  as  well  as  in  law,  the  joint  owners  of  property,  and 
the  joint  obligees,  or  covenantees,  were  in  general  required  to  be 
all  made  coplaintiffs,  but  if  one  or  more  refused  to  join,  he  or 
they  could  be  made  defendants.^  This  equitable  doctrine  is  now, 
if  we  accept  the  express  language  of  the  codes,  and  not  the 
glosses  put  upon  it  by  some  of  the  courts,  extended  to  all  actions 
alike.    • 

§  198.  As  already  stated,  these  sections  of  the  codes,  if  iwW  force 
be  given  to  their  plain  and  simple  terms,  look  to  a  more  free 
union  of  parties  as  plaintiffs  in  the  same  action  than  was  allowed 
by  the  courts  of  law  under  the  former  system.  In  order  to  be  a 
proper  plaintiff,  according  to  the  ancient  theory,  the  person  must 
be  interested  in  the  whole  of  the  recovery,  so  that  one  judgment 
could  be  rendered  for  all  the  plaintiffs  in  soUdo  ;  that  a  judgment 
should  be  given  to  one  plaintiff  for  a  certain  sum  of  money,  or 
for  certain  lands  or  chattels,  and  a  judgment  for  a  different  sum, 
or  other  lands  or  chattels,  be  awarded  to  another  plaintiff,  was 
regarded  as  the  sheerest  impossibility.     The  legal  notion  of  sur- 

1  See  1  Daniel's  Chan.  PI.  (4th  Am.  ed.),  pp.  192,  206,  207,  208,  211,  216. 


236  CIVIL   REMEDIES. 

vivorship  forbade  the  union  of  the  personal  representatives  of  a 
deceased  joint  contractor  with  the  others  who  were  living,  and 
even  the  union  of  the  representatives  of  all,  if  all  were  dead. 
The  text  of  the  codes  is  broad  enough,  and  explicit  enough,  if 
it  is  taken  literally,  to  abolish  these  legal  restrictions  upon  the 
freedom  of  joining  parties  as  plaintiffs.  Tlie  clauses,  "  All  per- 
sons having  an  interest  in  the  subject  of  the  action,  and  in 
obtaining  the  relief  demanded,"  and  "  those  who  are  united  in 
interest,"  do  not  necessarily  require  that  the  interest  of  all  those 
who  are  to  be  united  as  plaintiffs  should  be  equal  or  the  same, 
and  tliey  do  require  the  union  of  all  those  having  such  an  interest 
watliout  any  restriction  as  to  its  nature,  whether  it  be  legal  or 
equitable.  The  interest  of  the  survivors  of  joint  obligees,  cove- 
nantees, or  promisees,  was,  under  the  ancient  system,  strictly 
legal.  The  interest  of  the  executors  or  administrators  of  the 
deceased  joint  obligee  or  promisee  was  equitable,  but  was  none 
the  less  a  full  interest,  for  it  enabled  the  estate  to  obtain  its 
entire  portion  of  the  benefit  flowing  from  the  contract.  The  un- 
equivocal language  of  the  codes  declares  that  persons  holding 
this  common  interest  in  the  subject-matter  of  the  action,  or  in 
obtaining  the  relief  demanded,  may  be  united  as  plaintiffs. 

§  109.  In  one  other  class  of  cases  these  provisions  of  the  re- 
form legislation  would  seem  to  have  modified  the  former  practice 
in  legal  actions,  if  their  meaning  is  to  be  found  in  their  exact 
terras.  At  the  common  law,  the  different  holders  of  several 
rights  must  sue  separately,  although  the  rights  were  created  by 
a  single  instrument,  and  although  there  might  be  some  kind  of 
a  common  interest ;  no  election  was  given  to  bring  a  joint  action 
by  all,  or  a  separate  action  by  each.  This  rule  is  directly  within 
the  modifying  effect  of  the  sections  under  consideration.  "  All 
persons  having  an  interest  in  the  subject  of  the  action,  and  in 
obtaining  the  relief  demanded,  may  be  joined  as  plaintiffs."  The 
extent  of  the  interest  is  not  the  criterion,  nor  its  source  nor 
origin.  If  the  persons  have  ant/  interest,  whether  complete  or 
partial,  whether  absolute  or  contingent,  w^hether  resulting  from  a 
common  share  in  the  proceeds  of  the  suit,  or  arising  from  the 
stipulations  of  the  agreement,  the  language  applies  without  any 
limitation  or  exception,  and  without  any  distinction  suggested 
between  actions  which  are  equitable  and  those  which  are  legal. 
This  was  the  established  equity  doctrine  which  in  many  cases 


GENERAL  THEORY  AND  INTENT  OP  THE  CODES.       237 

l^ermitted  parties  to  be  united  as  plaintiffs  whose  rights  were,  in 
a  legal  aspect,  not  joint,  but  several.  It  is  possible,  indeed  it 
frequently  happens,  that  several  rights  may  l)e  held  by  two  or 
more  persons,  who  nevertheless  have  "an  interest  in  the  subject 
of  the  action  and  in  the  relief  demanded ; "  and  it  would  seem 
that  these  persons,  according  to  the  interpretation  given  above, 
may  now,  if  they  so  elect,  join  as  plaintiffs  in  bringing  a  legal 
action  as  well  as  in  maintaining  an  equitable  suit. 

§  200.  I  have  thus  far  intentionally  examined  the  sections  of 
the  various  State  codes  which  relate  to  the  joinder  of  parties 
plaintiff  in  the  civil  action,  without  any  reference  to  judicial 
authority  and  construction ;  I  have  endeavored  to  ascertain  and 
to  state  the  object  and  design  of  the  legislature  as  the  same  could 
be  gathered  with  reasonable  certainty  from  the  very  words  which 
it  has  employed.  This  legislative  intent,  when  the  field  of  in- 
vestigation is  thus  limited,  depends  upon  the  prior  rules  control- 
ling the  choice  of  parties  plaintiff  both  in  legal  and  in  equitable 
actions  and  upon  the  exact  text  of  the  statute  itself.  I  recapitulate 
the  results  reached  by  this  analysis  :  (1)  The  common-law  doc- 
trines defining  joint  and  several  rights,  and  the  special  rules  re- 
lating to  joint  and  several  actions,  are  not  specifically  abrogated 
or  modified  ;  whatever  changes  have  been  made  are  the  result  of 
ver}^  general  and  comprehensive  language  used  by  the  legislature. 

(2)  There  is  a  striking  difference  between  the  general  character  of 
the  provisions  having  reference  to  plaintiffs  and  that  of  the  pro- 
visions referring  to  defendants ;  the  latter  are  more  sjDCcial  in 
their  nature,  and  in  many  of  the  States  much  more  reformatory. 

(3)  The  new  system  has,  in  a  very  comprehensive  form,  established 
the  doctrine  of  equity  in  regard  to  the  choice  and  joinder  of 
plaintiffs,  and,  by  making  no  exceptions  or  limitations,  has  applied 
this  doctrine  to  all  actions,  whether  legal  or  equitable.  (4)  The 
effect  of  extending  this  doctrine  of  equity  to  legal  actions  is  not 
to  jjrevoit  the  union  of  parties  as  coplaintiffs  in  cases  where,  on 
account  of  a  joint  right,  the  common  law  required  such  union ; 
the  common-law  rule  making  the  joinder  of  all  such  persons 
necessary  is  left  unaffected,  with  the  single  exception  that  if  one 
who  should  regularly  be  made  a  plaintiff,  in  pursuance  of  such 
rules,  refuses  to  permit  his  name  to  be  thus  used,  he  may  be 
made  a  defendant  instead  ;  and  this  exceptional  provision  being 
without  limitation  or  restriction  in  the  text,  applies  as  well  to 


238  CIVIL   REMEDIES. 

legal  as  to  equitable  actions.  (5)  Persons  having  an  interest  in 
the  subject  of  the  action,  and  in  obtaining  the  relief  demanded, 
may  be  joined  as  plaintiffs  in  all  actions,  whatever  be  their  nature, 
although  the  rights  of  such  persons  are  legally  several,  and  al- 
though at  the  common  law  they  would  be  required  to  institute 
separate  actions  ;  or,  in  other  words,  the  plain  import  of  the 
legislation  —  its  language  not  being  confined  to  any  class  of  suits 
—  is  to  enlarge  the  number  of  cases  in  which  persons  may  be 
joined  as  coplaintiffs,  and  to  place  legal  actions  in  this  respect 
upon  exactly  the  same  footing  as  those  which  are  equitable  in 
their  nature.  (6)  The  special  rules  of  the  common  law  as  to 
husband  and  wife  have  been  entirely  abolished  in  some  States  by 
provisions  contained  in  their  codes  of  j^rocedure,  and  in  other 
States  by  separate  statutes  relating  exclusively  to  the  status  of 
marriage. 

§  201.  The  G-eneral  Theory  of  Judicial  Interpretation.  The 
foregoing  results  were  obtained  from  an  examination  of  the  lan- 
guage alone  which  the  legislatures  have  used  ;  I  shall  now  pro- 
ceed to  compare  them  with  the  general  conclusions  which  have 
been  reached  by  the  courts  in  their  interpretation  of  the  same 
provisions,  and  shall  thus  test  their  correctness  and  their  value 
as  practical  guides  in  the  administration  of  justice.  In  pursuing 
this  investigation,  the  inquiry  will  at  present  be  confined  to 
those  judicial  decisions  which  have  dealt  Avith  the  subject  of 
parties  plaintiff,  those  which  discuss  the  analogous  topic  of  parties 
defendant  being  reserved  to  the  succeeding  section  of  this  chap- 
ter. This  course  will  necessarily  produce  some  repetition  of  gen- 
eral principles ;  but  as  the  questions  relating  to  plaintiffs  and 
those  relating  to  defendants  arise  from  provisions  of  the  codes 
quite  different  in  their  scope  and  import,  a  separate  considera- 
tion of  them  will  prevent  confusion  and  uncertainty.  I  shall 
first  ascertain,  if  possible,  and  formulate  the  general  theory  of 
construction  upon  which  the  courts  have  proceeded  in  their  de- 
cision of  special  cases  ;  and,  secondly^  shall  classify  and  arrange 
these  cases,  and  deduce  therefrom  the  particular  rules  as  to  the 
joinder  of  plaintiffs  in  the  civil  action  which  have  been  judi- 
cially settled  as  a  part  of  the  reformed  system  of  procedure.  The 
number  of  instances  in  which  the  courts  have  laid  down  a  broad 
and  comprehensive  principle  of  interpretation,  which  might  be 
the  guide  in  whole  classes  of  adjudications,  is  very  few,  and  such 


JUDICIAL   INTERPRETATION   OF   THE    CODES.  239 

a  principle  must  rather  be  gathered  by  a  process  of  induction 
from  an  analysis  and  compaiison  of  particular  cases.  The  few 
attempts  at  the  statement  of  a  general  theory  which  have  been 
made,  I  shall  quote  somewhat  at  length. 

§  202.  In  an  early  case,  —  an  action  brought  by  the  three  obli- 
gees in  an  injunction  bond,  —  the  objection  was  raised  that  the 
rights  of  the  plaintiffs  were  not  joint,  and  that  they  had  been  im- 
properly united.  Their  interests,  which  had  been  interfered  with 
by  the  injunction,  were  in  fact  distinct  and  separate,  and  it  was 
assumed  throughout  the  judgment  that,  under  the  former  system, 
each  should  have  brought  a  several  action  on  the  undertaking. 
The  court,  after  stating  the  old  rule  applicable  to  the  circum- 
stances, proceeded  as  follows :  "  We  are  now  to  determine  this 
question  as  it  arises  under  the  code  of  procedure.  With  the  view 
of  embracing  all  cases,  whether  of  law  or  equity,  and  of  making 
them  conform  to  one  general  rule,  the  code  piovides,  in  §  117, 
that  '  all  persons  having  an  interest  in  the  subject  of  the  action 
and  in  the  relief  demanded,  may  be  joined  as  plaintiffs.'  This  is 
now  the  rule  in  all  cases,  whether  such  as  were  formerly  the  sub- 
jects of  suits  in  equity  or  of  actions  at  law,  and  we  are  to  admin- 
ister it  according  to  its  spirit  and  true  intent,  however  the  prac- 
tice may  differ  from  the  rule  that  has  heretofore  prevailed  in 
actions  at  law.  ...  It  will  be  perceived  that  this  case  falls  within 
the  precise  words  of  the  section  before  cited.  All  have  an  interest 
in  the  subject  of  the  action  and  in  tlie  relief  demanded  —  that 
is,  in  the  damages  arising  out  of  the  operations  of  the  injunction. 
It  is  not  said  to  be  a  joint  or  an  equal  or  even  a  common  interest, 
but  simply  an  interest  in  the  subject  of  the  action  with  the  view 
of  doing  full  justice  and  settling  the  rights  of  all  the  parties  in 
interest  in  one  suit."  ^  The  Supreme  Court  of  Ohio  has  adopted 
the  same  principle  of  interpretation,  and  has  given  a  construction 

1  Loomis  V.  Brown,  16  Barb.  325,  330,  ing  §  36  of  tlie   code,  in  relation  to  the 

332,  per  Gridley,  J.     In  the  recent  case  joinder  of  phiinlifFs,  the  court  said :"  There 

of  Pelly  V.  Bowyer  7  Busli,  513,  tlie  Court  can  be  no  doubt  that  in  equity  actions  for 

of  Appeals  of  Kentucky  gave  a  very  dif-  tlie  settlement  of  estates  several  distribu- 

ferent  construction  to  the  statutory  pro-  tees  may  unite  as  plaintilfs.  But,  except  in 

vision.       The    action    was    brought    by  a  particular  class  of  cases,  not  embracing 

several  distributees  to  recover  from   the  this,  we  know  of  no  authority  for  uniting 

administrator  the  shares  found  to  be  due  as     coplaintiffs     several    parties    having 

each  on  a  settlement  of  the  estate,  and  it  separate  and  independent  rights  of  action 

resulted  in  a  joint  judgment  for  the  aggre-  against  the  same  defendant,  or  for  a  joint 

gate  amount  of  such  shares.     The  action,  recovery  thereon." 
it  was  held,  was  entirely  irregular.    Quot- 


240  CIVIL   REMEDIES. 

to  iiuportunt  terms  of  the  statutory  provision.  An  action  was 
brought  upon  an  undertaking  called  a  forthcoming  bond,  executed 
by  the  defendant  and  sureties  in  attacliment  proceedings.  Cer- 
tain creditors  had  commenced  suit,  and  had  attached  the  property 
of  their  common  debtor.  The  latter  gave  the  bond  in  question 
to  the  sheriff  running  to  all  these  plaintiffs,  the  condition  of 
which  was  that  the  property  attached,  or  its  equivalent  in  money, 
should  be  forthcoming  to  answer  the  judgments  which  might 
be  obtained.  Subsequently  other  creditors  issued  attachments 
against  the  same  debtor,  which  were  delivered  to  the  same  sheriff, 
and  he  returned  on  each  that  he  had  levied  upon  the  same  goods 
before  mentioned.  All  these  creditors  united  in  an  action  upon 
the  bond,  and  the  objection  was  taken  that  there  was  a  misjoinder 
of  parties  plaintiff.  The  court,  after  examining  the  clauses  of 
the  code  relative  to  attachments,  and  showing  that  the  bond 
inured  to  the  benefit  of  all  the  creditors,  disposed  of  the  ol)jection 
as  to  parties  in  the  following  manner  :  "  The  first  question  pre- 
sented for  our  consideration  is  the  right  of  joinder  of  the  plaintiffs 
in  the  action.  The  provisions  of  the  code  are  as  follows  [citing 
the  sections].  In  order  to  correctly  determine  this  question,  it  is 
only  necessary  to  ascertain  what  was  the  subject  of  the  action, 
and  how  the  parties  stood  related  to  it.  The  subject  of  the  ac- 
tion is  the  attachment  undertaking."  The  court  proceeds  to 
hold  that  all  the  plaintiffs  had  a  beneficial  interest  in  this  under- 
taking, although  not  named  as  parties  in  it,  and  concludes:  "It 
folloAvs,  therefore,  that  the  subsequent  attaching  creditors  had  an 
interest  in  the  subject  of  the  action  and  in  obtaining  the  relief 
demanded  by  the  action  upon  the  undertaking,  and  might  prop- 
erly be  joined  as  plaintiffs."  ^  It  should  be  observed  tliat  the 
court  here  gave  a  very  broad  interpretation  to  the  phrase  "  the 
subject  of  the  action  "  and  to  the  term  "  interest."  The  "  sub- 
ject of  the  action  "  was  said  to  be  the  contract  upon  which  the 
suit  was  brought,  and  not  the  mere  individual  rights  arising  from 
that  contract,  nor  the  breach  of  those  rights  by  the  defendant. 
The  "  interest "  required  is  equally  general,  and  the  language  of 
the  clause  is  satisfied  by  a  beneficial  interest  created  by  operation 
of  law,  even  though  the  person  in  whom  it  resides  is  not  named 
in  the  contract,  and  could  not  possibly  have  had  any  interest  at 
the  time  the  instrument  was  executed.  Again,  the  rights  of  the 
1  Rutledge  v.  Corbin,  10  Ohio  St.  478,  484,  per  Sutliff  J. 


JUDICIAL   INTERPRETATION   OF   THE   CODES.  241 

plaintiffs  were  clearly  several ;  the  undertaking  of  the  defendants 
was  for  different  amounts  due  to  separate  individuals,  and  pay- 
able upon  the  happening  of  different  events  having  no  legal  con- 
nection and  no  common  element.  It  was,  in  its  legal  effect,  a 
collection  of  independent  promises  to  pay  distinct  sums  of  money 
to  separate  persons  contained  in  one  written  instrument. 

§  203.  The  Supreme  Court  of  Indiana  has  stated  the  same 
general  principles  of  interpretation  in  a  clear  manner,  and  with 
the  evident  desire  to  comply  with  the  spirit  of  the  new  system 
which  characterizes  all  the  decisions  of  that  able  tribunal.  An 
action  was  brought  by  three  plaintiffs  uj)on  a  peculiar  contract, 
entered  into  between  themselves  and  the  two  defendants,  in 
which  each  of  the  five  stipulated  for  indemnity  against  a  certain 
contingent  liability  to  be  given  by  the  four  others,  and  in  which 
the  rights  and  liabilities  were  clearly  several  according  to  the 
common-law  conception.  The  court  say :  "  The  code  itself  is 
not  exactly  definite  as  to  who  may  be  joined  as  plaintiffs.  It 
provides,  however,  that  judgment  may  be  given  for  or  against 
one  or  more  of  several  plaintiffs,  which  was  the  practice  in 
equity,  though  it  was  otherwise  at  law.  It  also  provides  that  all 
persons  having  an  interest  in  the  subject  of  the  action  and  in 
the  relief  demanded  may  be  joined  as  plaintiffs.  Indeed,  the 
code  seems  to  have  re-enacted  the  rules  which  had  prevailed  in 
courts  of  equity  as  to  who  must  join  as  plaintiffs,  and  may  be 
joined  as  defendants.  But  as  to  those  cases  in  which  in  equity 
plaintiffs  might  or  might  not  have  joined  at  their  option,  the 
code  does  not  expressly  speak,  for  the  reason,  probably,  that  the 
general  rule  in  equity  was  not  founded  upon  any  uniform  prin- 
ciple, and  could  not  be  expounded  by  any  universal  theorem  as  a 
test.i  And  it  may  have  been  thought  safe,  therefore,  to  leave  each 
case  to  be  decided  by  the  courts  upon  authority  and  analogy* 
That  it  was  intended  the  rules  of  pleading  in  courts  of  equity 
should  govern  the  subject,  is  quite  evident  from  those  j^jrovisions 
of  the  code  which  prescribe  the  relief  that  may  be  granted,  and 
to  whom  ;  in  this  respect  conforming  entirely  to  the  established 
practice  of  those  courts,  —  a  mode  of  administration  quite  im- 
practicable in  a  great  many  cases,  unless  the  parties  might  be  as 
in  chancery.  The  present  inquiry  is,  then,  in  view  of  the  con- 
siderations above  stated,  reduced  to  this  :  Could  these  plaintiffs 

1  story  Eq.  PI.,  §  539. 
16 


242  CIVIL   REMEDIES. 

have  formerly  been  joined  in  chancery  ?  "  The  opinion  i^rocceds 
to  examine  the  provisions  of  the  contract,  and,  holding  that  the 
rights  as  well  as  the  liabilities  of  all  the  parties  were  entirel}^  sev- 
eral, and  would  have  been  so  regarded  in  equity,  concludes  as  fol- 
lows: "  In  the  case  before  us  there  is  in  the  plaintiffs  no  community 
of  interest  in  any  matter  involved  in  the  suit ;  no  right  common  to 
all  is  claimed  ;  every  thing  is  separate,  save  only  that  the  right 
asserted  by  each  is  founded  in  a  contract  which,  for  convenience, 
happens  to  be  on  the  same  sheet  of  paper.  We  have  failed  to 
find  any  warrant  in  the  adjudged  cases  for  a  joinder  of  plaintiffs 
under  such  circumstances."  ^  The  equita])le  interpretation  of 
the  sections  relating  to  the  union  of  parties  plaintiff  is  here 
fully  admitted,  and  it  is  declared  that  the  established  rule  of  the 
equity  courts  is  to  be  taken  as  the  criterion  by  which  to  deter- 
mine all  questions  as  to  the  proper  joinder  of  plaintiffs  now 
arising,  even  in  legal  actions.  The  attempt  to  maintain  this  par- 
ticular suit  by  the  three  coplaintiffs  was  condemned,  not  because 
their  rights  were  several  according  to  the  legal  notion,  but 
because  they  were  so  unconnected  that  they  could  not  have  been 
enforced  by  a  single  action  in  equity.  The  same  court  reiterated 
this  principle  of  interpretation  in  another  well-considered  case, 
and  it  may  be  regarded  as  the  settled  doctrine  of  that  State. 
"  The  code  requires  all  persons  having  an  interest  in  the  subject 
of  the  action,  and  in  the  relief  demanded,  except  as  otherwise 
provided,  to  be  joined  as  plaintiffs.  It  also  requires  those  who 
are  united  in  interest  to  be  joined  as  plaintiffs  or  defendants. 
And  it  then  declares  that,  when  the  question  is  one  of  common  or 
general  interest  to  many  persons,  or  when  the  parties  are  numer- 
ous and  it  is  impracticable  to  bring  them  all  before  the  court, 
one  or  more  may  sue  or  defend  for  the  benefit  of  the  whole. ^ 
These  provisions  substantially  re-enact  the  old  equity  rules  on 
the  subject  of  parties.  All  who  are  united  in  interest  must  join 
in  the  suit,  unless  they  are  so  numerous  as  to  render  it  impracti- 
cable to  bring  them  all  before  the  court ;  while  those  wdio  have 
only  a  common  or  general  interest  in  the  controversy  may  one  or 
more  of  them  institute  an  action.  This,  however,  must  not  be 
understood  as  allowing,  in  all  cases,  two  or  more  persons  having 
separate  causes  of  action  against  the  same  defendant,  though 

1  Goodnight  v.  Goar,  30  Ind.  418,  419,  per  Frazer  J.     See  Maple  v.  Beach,  43 
Ind.  51,  59. 

2  Code  of  Ind.,  §§  17,18,  19. 


JUDICIAL   INTERPRETATION   OF   THE   CODES.  243 

arising  out  of  the  same  transaction,  to  unite  and  pursue  their 
remedies  in  one  action.  Several  plaintiffs,  by  one  complaint,  can- 
not demand  several  matters  of  relief  which  are  plainly  distinct 
and  unconnected.  But  where  one  general  right  is  claimed,  where 
there  is  one  common  interest  among  all  the  plaintiffs,  centring 
in  the  point  in  issue  in  the  cause,  the  objection  of  improper  par- 
ties cannot  be  maintained.^ 

§  204.  Notwithstanding  the  common  principle  which  lies  at 
the  bottom  of  the  foregoing  opinions,  and  which  has  undoubtedly 
been  adopted  by  a  great  majority  of  the  various  State  courts  in 
their  construction  of  these  statutory  provisions,  there  has  not 
been  an  absolute  unanimity  of  decision.  By  some  individual 
judges,  and  even  by  some  courts,  the  operation  of  the  sections 
under  consideration  has  been  confined  exclusively  to  equitable 
actions,  while  the  ancient  common-law  rules  as  to  parties  have 
been  declared  controlling  in  all  legal  actions.  A  reference  to 
two  or  three  cases  in  which  this  ancient  distinction  has  been  still 
preserved,  will  be  sufficient  for  my  purjJose.  Two  persons,  A. 
and  B.,  entered  into  a  written  contract  witb  a  third,  C,  for  the 
performance  of  certain  work  and  labor,  at  a  stipulated  price. 
The  work  having  been  completed,  and  C.  refusing  to  pay  the 
price  agreed  upon,  A.  brought  an  action  upon  the  contract ; 
demanding  judgment  for  one-half  of  said  sum,  and  making  B., 
•  his  co-contractor,  a  defendant,  alleging  that  he  had  refused  to  be 
a  party  plaintiff,  and  had  confederated  with  C.  to  hinder  and 
dela}-  the  plaintiff  from  obtaining  his  demand.  The  Supreme 
Court  of  Missouri,  in  affirming  a  nonsuit  which  had  been  ordered 
at  the  trial,  said:  "  If  C.  has  violated  his  contract,  he  is  liable  to 
an  action  ;  but  that  action  could  only  be  brought  in  the  joint 
names  of  A.  and  B.,  the  contractors.  That  provision  of  the 
Practice  Act  which  allows  a  party  to  be  made  a  defendant  when 
he  will  not  join  as  a  plaintiff,  has  nothing  to  do  with  this  ques- 
tion. That  was  a  rule  of  equity  practice  which  was  necessarily 
incorporated  into  a  system  which  abolished  all  distinction  of  actions. 
In  adopting  it,  it  was  not  designed  that  it  should  have  any  oper- 


1  Tate  V.  Ohio  &  Miss.  R.  R.,  10  Ind.  visions  of  the  code  apply  to  legal  and 

174;  citing  McKenzie  y.  L'Amoureux,  11  equitable  actions    alike.     Cummings    v. 

Barb.  516  ;  Bouton  v.  City  of  Brooklyn,  Morris,  25  N.  Y.  625  ;  Grinnell  v.  Schmidt, 

15  Barb.  375  ;  Murray  v.  Hay,  1  Barb.  Ch.  2  Sandf.  706  ;  Cole  v.  Reynolds,  18  N.  Y. 

69.     The  following  cases,  among  others,  74. 
assert  the  general  doctrine  that  the  pro- 


244  CIVIL    REMEDIES. 

ation  Lilt  in  cases  where  it  was  applicable  under  the  former  sys- 
tem of  j)ractice.  It  was  never  intended  that  it  should  affect  the 
rights  of  parties  arising-  out  of  written  contracts.  Nothing  is 
better  settled  than  the  rule  that,  on  an  undertaking  to  two,  both 
must  join  in  an  action  on  it,  otherwise  there  is  no  cause  of 
action.  It  is  a  part  of  the  contract  that  both  shall  sue,  other- 
wise no  action  shall  be  brought.  If  one  will  say  that  he  had  no 
right  of  action,  and  will  not  sue,  why  should  he  not  have  as 
much  right  as  the  other  who  says  there  is  a  cause  of  action?  "  ^ 
The  same  general  doctrine  was  accepted  as  the  basis  of  interpre- 
tation, and  the  same  restriction  of  the  statutory  provisions  to 
suits  in  equity  was  announced,  by  the  Supreme  Court  of  Cali- 
fornia in  an  early  case  arising  upon  similar  facts.  "  The  simple 
question  presented  for  our  consideration  is,  whether  there  was  a 
non-joinder  of  parties  plaintiff  or  not ;  it  being  contended  that 
§  14  of  the  Practice  Act  has  introduced  a  new  rule,  and  that  one 
of  several  parties  may  maintain  an  action  on  a  joint  contract,  in 
his  own  name,  by  simply  suggesting  the  impossibility  of  obtain- 
ing the  consent  of  the  others  to  join  in  the  action.  Upon  exam- 
ination of  this  section,  we  are  satisfied  that  it  was  intended  to 
apply  to  suits  in  equity,  and  not  to  actions  at  law."  ^  I  have 
placed  in  the  foot-note  a  number  of  cases  which  contain  expres- 
sions of  opinion  by  individual  judges,  that  the  sections  and 
clauses  of  the  codes  and  practice  acts  regulating  the  choice  and 
joinder  of  parties  are  confined  in  their  scope  and  operation  to 
equitable    actions   alone,  and  were    not   intended   by  the  legis- 

1  Rainey    v.    Sraizer,    28    Mo.     310,  of  the   legislature,  —  an  assumption  not 

per  Scott  J.      The  opinion  proceeds   to  warranted  bj' a  single  clause  of  the  statute, 

state  a  number  of  imaginary  difficulties  in  and  utterly  inconsistent  with  the  entire 

the  way  of  such  arrangement  of  parties  history  of  the  reform.     Undoubtedly,  the 

as  made   by  the    plaintiff  in    this    case,  common-law  rule  mentioned  by  the  court 

The   decision,   and   tlie  whole   scope   of  was  well  settled ;   but  it  was  the  very 

the  argument,  are  an  excellent  illustration  object,  the  avowed  purpose,  of  the  code 

of  the  judicial  mode  of  repealing    stat-  to  abolish   this  whole  class  of  arbitrary 

utes.      Conceding  that   the  new  system  legal    dogmas,   and   to   introduce   in    all 

aliolishes  (ill  (lislinction  of  actions,  the  learned  judicial  proceedings  the  freer  and  more 

judge,  in  the  same  breath,  preserces  these  just  methods  of  equity.     See,  per  contra, 

very  distinctions  entireli/  umi/f'ecterl.    If  these  Hill  v.  Marsh,  46  Ind.  216. 
distinctions  were  thus  abolished,  it  would  2  Andrews  v.  Mokelumne  Hill  Co.,  7 

have  been  natural  to  conclude  that  the  Cal.  330,  333.     The  same  court  has,  in 

former  equitable   rule,  incorporated  into  later  cases,  pursued  a  course  of  decision 

the  code  without  a  suggestion  of  limita-  more  In  accordance  with  the  spirit  of  the 

tion,  was  now  to  be  applied  to  all  actions  code,  and  has,  as  completely  perhaps  aa 

alike  upon  a  proper  occasion.     This  nat-  any  other  tribunal,  abandoned  all  attempt 

ural  conclusion  is  obviated,  however,  by  a  to  preserve  a  distinction  between  actions 

mere  naked  assumption  as  to  the  intent  at  law  and  suits  in  equity. 


IMPROPER   PARTIES    PLAINTIFF.  245. 

lature  to  interfere  with  the  former  rules  apphcable  to  legal 
actions.^ 

§  205.  The  citations  given  in  the  foregoing  paragraphs  confirm 
the  conclusions  which  were  reached  by  a  mere  analysis  of  the 
language.  Tliat  these  provisions  as  to  the  parties  plaintiff  do 
enact  the  general  doctrines  which  had  prevailed  in  courts  of 
equity,  is  admitted  b}"  both  schools  of  interpretation  ;  and  that 
these  equitable  rules,  thus  embodied  in  a  statutory  form,  do  apply 
to  all  actions,  and  are  not  by  any  implied  limitation  restricted 
to  equitable  actions,  is  now,  I  think,  declared  by  the  courts  in 
most  of  the  States  which  have  adopted  the  reformed  procedure. 
Assuming  these  facts  as  premises,  all  the  other  propositions 
stated  in  my  preliminary  analysis  follow  as  a  necessary  conse- 
quence. In  this  immediate  connection  it  should  be  remarked 
that  individual  judges  will  give  greater  or  less  scope  to  the  lib- 
erty granted  by  the  legislative  rule,  according  to  their  personal 
notions  of  expediency.  There  was  a  numerous  class  of  cases, 
under  the  former  system,  in  which  courts  of  equity  recognized 
an  election  on  the  part  of  claimants  either  to  join  in  one  proceed- 
ing or  to  sue  separatel3^  This  power  of  choice,  then  confined, 
of  course,  to  suits  in  equity,  stills  remains  in  similar  instances,  and 
may  even  be  extended  to  certain  controversies  in  which  the  cause 
of  action  is  legal.  Thus,  where  the  right  is  strictly  several,  and 
would  be  regarded  as  such  by  the  common  law,  equity  might 
have  allowed  them  an  election  to  sue  separately  or  jointly.  This 
power  of  choice,  contained  in  the  equity  doctrine,  is  introduced 
into  the  new  procedure,  and  is  of  course  not  confined  to  suits 
equitable  in  their  nature.  We  must,  therefore,  expect  to  find, 
within  certain  narrow  bounds,  some  conflict  of  decision  from 
judges  who  accept  and  heartily  approve  the  general  principles  of 
interpretation  which  have  been  developed  in  the  foregoing  dis- 
cussion. 

§  206.  Manner  of  raising  the  question  as  to  the  proper  parties 
plaintiff.  Before  proceeding  to  the  discussion  of  particular 
cases  and  special  rules,  a  preliminary  question  may  be  here  prop- 
erly answered:  How  can  the  objection  that  an  action  has  not 
been  brought  by  the  proper  plaintiff  or  plaintiffs  be  i*aised  and 
regularly  presented  to  the  court  for  its  decision  ?     The  codes  of 

1  Voorhis  v.  Cliild's  Executors,  17  Pemberton,  4  Sandf.  657  ;  Van  Home  v. 
N.   Y.   354,   per   Seidell  J.;    Habiclit   v.     Everson,  13  Barb.  526. 


246  CIVIL   REMEDIES. 

procedure   all   agree    in   prescribing,   among    other   grounds  of 
demurrer  to  the  complaint  or  petition,  the  following  :  "  When  it 
shall  appear  on  the  face  of  the  complaint  or  petition  ;  2,  that  the 
plaintiff  has   not  legal  capacity  to  sue  ;    or,  4,  that  there  is  a 
defect  of  parties  plaintiff  or  defendant ;  or,  6,  that  the  complaint 
or  petition  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action  ;  "  ^  and  also  that,  "  when  any  of  the  matters  enumerated 
in  section  [the  foregoing]  do  not  aj^pear  on  the  face  of  the  com- 
plaint or  petition,  the  objection  may  be  taken  by  answer  ;  "  ^  and, 
finally,  "  if  no  objection  be  taken,  either  by  demurrer  or  answer, 
the  defendant  shall  be  deemed  to  have  waived  the  same,  except- 
ing only  the  objection  to  the  jurisdiction  of  the  court,  and  the 
objection  that  the  complaint  or  petition  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action."  **     The  construction  to  be 
placed  upon  these  clauses,  and  the  resulting  rules  prescribing  the 
methods  by  which  an  objection  as  to  proper  parties  must  be  inter- 
posed, in  order  to  present  a  question  for  judicial  decision,  have 
been  settled   in  the  various  States  with  almost  complete   uni- 
formity.    In  regard  to  defect  of  parties  plaititiff,  the  interpreta- 
tion is  now  established,  that  "  defect  of  parties,"  given  as  one 
ground   of   demurrer,  means   too  feu%  and   not   too   mayiy.     A 
demurrer  alleging  this  particular  objection  can  only  be   inter- 
posed, therefore,  in  case  of  a  non-joinder  of  necessary  plaintiffs 
or  defendants,  and  never  in  case  of  a  wi'.s-joinder.     The  word 
"  defect  "  is  taken  in  its  literal  sense  of  "  deficiency,"  and  not  in  a 
broader  sense  as  meaning  any  error  in  the  selection  of  parties. 
Upon  this  point  the  courts  are  nearly  unanimous.'*     It  has  been 

1  Xew  York,  §  144 ;  Minnesota,  §  80  ;  §  2650 ;  Mo.,  art.  5,  §  10;  Ind.  §  54  ;  Wise. 
Kansas,  §  89;  Nebraska,  §  94;  Iowa,  ch.  125,  §  9  ;  Ohio,  §  89;  Oregon,  §  70; 
§  2648 ;  Missouri,  art.  5,  §  6 ;  Indiana,  Fla.  §  99 ;  Cal.  §  434 ;  Dacotah,  §  101 ; 
§  50  ;  Wisconsin,  ch.  12.5,  §  5;  Ohio,  §  87  ;  N.  C.  §  99  ;  S.  C.  §  171. 
Oregon,  §  66  ;  Florida,  §  95  ;  California,  *  Pahner  v.  Davis,  28  N.  Y.  242  ;  Case 
§  430 ;  Dacota,  §  97  ;  N.  C.  §  95 ;  S.  C.  §  v.  Carroll,  35  N.  Y.  385 ;  Eichtmyer  v. 
167.  In  the  following  codes  it  is  made  a  Richtmyer,  50  Barb.  55 ;  Powers  v.  Bum- 
special  cause  of  demurrer  that  there  is  cratz,  12  0.  St.  273;  Berkshire  v.  Shultz, 
a  misjoinder  of  plaintiffs  or  defendants ;  25  Ind.  523 ;  Bennett  v.  Preston,  17  Ind. 
Missouri,  art.  5,  §   6  ;  Cal.  §  430.  291 ;  Mornan  v.  Carroll,  35  Iowa,  22;  Hill 

-  New  York,  §  147;  Minnesota,  §82;  v.  Marsh,  46  Ind.  218.     As  the  same  is 

Kansas.  §    91;    Nebraska,  §    96;  Iowa,  true  of  defendants,  —  the  section  includ- 

§2650;  Missouri,  art.  5,  §   10;  Indiana,  ing  both  parties  in  a  single  formula,  —  the 

§  54  ;  Wisconsin,  ch.  125,  §  8 ;  Ohio,  §  89  ;  decisions  in  refetence  to  them  are  in  point. 

Oregon,  §  69;  Florida,  §  98  ;  Cal.  §  433;  See  Peabody  i".  Washington,  &c.  Ins.  Co., 

Dacotah,  §  100  ;  N.  C.  §  98 ;  S.  C.  §170.  20  Barb.  339  ;  Voorhis  v.  Ba.xter,  18  Barb. 

3  New  York,  §  148 ;  Minnesota,'§  82a ;  592;  s.  c.  17  N.  Y.  354;  Bank  of  Hav- 

Kansas,   §   91 ;   Nebraska,   §   96 ;    Iowa,  ana  ;;.  Magee,  20  N.  Y.  855. 


NON-JOINDER   OF   PLAINTIFFS.  247 

held,  however,  in  Wisconsin  that  this  is  the  proper  form  of 
demurrer  where  the  objection  is  to  a  misjoinder.^ 

§  207.  When  a  defect  of  parties  pkintiff — that  is,  a  non- 
joinder—  appears  on  the  face  of  the  complaint  or  petition,  the 
defendant  7nust  raise  the  question  by  demurrer,  and  not  by  an- 
swer. If  he  neglects  to  interpose  a  demurrer  upon  this  specific 
ground,  he  waives  the  objection  entirely,  even  though  he  sets  up 
the  defence  in  his  answer.  The  reason  given  for  this  somewhat 
technical  rule  is  the  following:  The  mere  defence  of  a  defect 
of  parties,  not  going  to  the  real  merits  of  the  controversy,  and  not 
denying  the  cause  of  action  existing  in  some  persons,  is  not  favored 
by  the  courts ;  it  is  regarded  as  a  "  dilatory  defence,"  because 
it  does  nothing  more  than  postpone  the  decision  of  the  substantial 
issues ;  and,  although  the  defendant  is  permitted  to  avail  himself 
of  it,  he  must  follow  exactly  the  modes  prescribed  b}^  the  rules 
of  practice,  or  by  the  statute  for  its  interposition.^  If  the  defect 
does  not  appear  upon  the  face  of  the  complaint  or  petition,  the 
defendant  must  set  up  the  defence  specially  in  his  answer,  or, 
failing  this,  he  waives  the  objection.^  To  sum  up :  if  a  defect 
of  parties  plaintiff  appears  in  the  pleading,  the  mode  of  raising 
the  defence  is  by  demurrer  alone ;  if  it  does  not  appear  in  the 
pleading,  by  answer  alone ;  and,  unless  the  defendant  complies 
with  these  requirements  as  to  method,  he  waives  all  objection. 
It  has  been  expressly  decided  in  Ohio,  and  this  is  plainly  the 
correct  rule,  that  a  demurrer  for  want  of  sufficient  facts  does 
not  raise  the  question  of  a  defect  —  non-joinder  —  of  plaintiffs  or 
defendants.* 

§  208.  A  luant  of  legal  capacity  to  sue.  A  demurrer  or  defence 
for  this  cause  must  relate  exclusively  to  some  legal  disability  of 

1  Read  v.  Sang,  21  Wise.  678.  The  Dailey  v.  Houston,  58  Mo.  361,  366  ;  Mc- 
demurrer  was  lield  proper  upon  the  au-  Roberts  v.  So.  Minn.  R.  R.,  18  Minn.  108, 
tliority  of  an  early  New  Yorlc  decision, —  110.  As  the  same  rule  applies  in  case  of 
Dunderdale  v.  Grymes,  16  How.  Pr.  195,  defect  in  parties  defendant,  see  Dillaye  v. 
wliich  has  since  been  many  times  over-  Parks,  31  Barb.  132;  Wriglit  v.  Storrs, 
ruled  in  tliat  State.  32  N.  Y.  691 ;  s.  c.  6  Bosw.  600;  Abbe  v. 

2  Zabriskie  v.    Smith,  13  N.  Y.   322;  Clarke,  31  Barb.  288. 

De  Puy  V.  Strong,  37  N.  Y.  372  ;  3  Keyes,  »  Ibid.     Also  Merritt    v.   Walsh,    32 

603  ;  Patchin  v.  Peck,  38  N.  Y.  39  ;  Fislier  N.  Y.  685 ;  Donnell  v.   Walsh,  33  N.  Y. 

V.  Hall,  41  N.  Y.  416 ;   Wells  v.  Cone,  55  43 ;  s.  c.  6  Bosw.  621 ;  Gock  v.  Keneda, 

Barb.  585;  Hees  v.  Nellis,  1  N.  Y.  Sup.  29   Barb.   120;    Umsted   v.   Buskirk,  17 

Ct.  118;  Alexander  v.  Gaar,  15  Ind.  89;  Ohio   St.  113;  Dickinson  v.  Vanderpoel, 

Justice  V.  Phillips,   3   Bush  (Ky.),   200;  5  N.  Y.  Sup.  Ct.  168. 

Andrews  v.  Mokelumne   Hill  Co.,  7  Cal.  *  Umsted    v.  Buskirk,   17    Ohio    St. 

330;    Tennant   v.   Pfister,   45  Cal.   270;  113. 


2-18  CIVIL   REMEDIES. 

the  plaintiff,  —  such  as  infancy,  coverture,  idiocy,  and  the  like,  — 
and  not  to  the  absence  of  facts  sufficient  to  constitute  a  cause  of 
action.  The  facts  constituting  a  cause  of  action  may  be  suffi- 
ciently averred,  and  yet  the  plaintiff  may  not  have  a  legal  capacity 
to  sue.  The  objection  that  the  plaintiff  has  not  legal  capacity 
cannot,  therefore,  be  raised  and  relied  upon  under  a  demurrer  for 
want  of  sufficient  facts,  nor  the  objection  of  a  want  of  facts  under 
a  demurrer  alleging  an  absence  of  legal  capacity.- 

§  209.  3Ilsjoinder  of  Plaintiffs.  A  misjoinder  of  parties  plain- 
tiff is  not  made  a  specific  ground  of  demurrer,  or  mentioned  as  a 
defence,  except  in  one  or  two  of  the  codes.  At  the  common  law 
two  or  more  persons  could  not  be  joined  as  plaintiffs  in  an  action 
upon  contract,  unless  they  possessed  a  joint  right ;  and,  if  on  the 
trial  they  failed  to  establish  such  right  as  alleged  residing  in  all, 
a  nonsuit  was  inevitable.  If  two  or  more  persons  were  unitCvd  as 
plaintiffs  in  a  legal  action  based  upon  their  right  of  property  in 
lands  or  chattels,  they  must  necessarily  have  been  either  joint 
owners  or  owners  in  common,  and  a  failure  to  prove  the  joint 
right  of  action  was  followed  by  the  same  consequence,  —  a  defeat 
of  all  the  plaintiffs.  The  arbitrary  theory  of  this  ancient  rule  has 
already  been  explained,  and  need  not  be  repeated.  In  equity,  no 
such  doctrine  prevailed  ;  because,  when  two  or  more  persons  were 
made  plaintiffs  in  the  same  action,  it  by  no  means  followed  that 
they  held  and  alleged  a  joint  right  residnig  in  themselves.  When, 
therefore,  there  was  an  improper  or  unnecessary  union  of  co- 
plaintiffs  in  an  equity  action,  the  suit  did  not  necessarily  fail  as 
to  all ;  the  bill  might  be  dismissed  at  the  hearing  as  to  certain  of 
the  plaintiffs,  and  a  decree  rendered  for  the  others ;  or  some 
might  be  struck  off,  upon  motion,  at  any  stage  of  the  proceedings, 
and  the  cause  go  on  in  the  name  of  the  residue. 

§  210.  Has  any  change  in  these  conceptions,  and  in  the  practi- 
cal rules  derived  from  them,  been  wrought  b}'-  the  codes  of  pro- 
cedure ?     If  the  old  distinction  between  joint  legal  rights  and 

>  De    Bolt   V.    Carter,   31    Ind.    355 ;  How.  Pr.  149  ;  Hobart  v.  Frost,  5  Duer, 

Berkshire  v.  Slmltz,  '25  Ind.  523 ;  People  672      In  New  York,  a  corporation  is  not 

V.  Crooks,  53  N.  Y.  048  ;  Haire  v.  Baker,  required  to  aver  the  acts  creating  its  cor- 

6  N.  Y.357;  Fulton  Fire  Ins.  Co.  v.  Bald-  porate  character;  and,  in  an  action  by  a 

win,  37  N.  Y.  648;  Allen  v.  Buffalo,  38  bank  where  the  complaint  omitted   any 

N.  Y.  280 ;  Palmer  v.  Davis,  28  N.  Y.  242  ;  such  allegation,  a  demurrer  on  the  ground 

Bank  of  Lowville  v.  Edwards,  11   How.  of  a  want  of  legal  capacity  was  overruled. 

Pr.  216;  Viburt  v.  Frost,  3  Abb.  Pr.  120;  Phoenix  Bank  v.  Donnell,  40  N.  Y.  410, 

Myers   v.  Machado,  6  Abb.  Pr.   I'JS,  14  41  Barb.  671. 


MISJOINDER   OF   PLAINTIFFS.  249 

several  legal  rights  is  maintained  ;  if  the  ancient  notion  of  the 
common  law,  that  two  or  more  parties  plaintiff  in  a  legal  action, 
brought  upon  a  contract  or  upon  the  ownership  of  land  or  chat- 
tels, must  hold  a  joint  cause  of  action,  is  still  preserved,  witli  all 
of  its  technical  incidents  ;  if  it  be  considered  that  the  reform  legis- 
lation has  confined  its  equitable  doctrine  as  to  parties  to  equitable 
actions  alone,  while  it  has  left  the  doctrines  regulating  legal  ac- 
tions untouched,  —  then  no  change  has  been  wrought  in  the  prac- 
tical rules  which  determine  the  effect  of  a  misjoinder  of  plaintiffs, 
as  stated  in  the  foregoing  paragraph.  Under  this  assumption,  a 
misjoinder  of  plaintiffs  in  a  legal  action,  brought  upon  a  contract 
or  upon  property  in  lands  or  chattels,  must  now,  as  formerly, 
entail  the  consequence  of  a  complete  failure  ;  while  now,  as  for- 
merly, a  misjoinder  of  plaintiffs  in  an  equity  suit  does  not  entail 
such  a  consequence  ;  a  judgment  can  be  recovered  by  a  portion  of 
the  plaintiffs,  and  the  action  be  dismissed  as  to  the  residue.  If, 
on  the  other  hand,  the  system  is  to  be  accepted  and  acted  upon 
in  the  spirit  which  designed  it,  —  if  its  requirements  as  to  parties, 
which,  as  is  universally  conceded,  enact  the  established  doctrines 
of  the  equity  courts,  extend  the  one  principle  to  all  actions,  legal 
as  well  as  equitable,  —  then  there  is  a  single  rule  governing  all 
actions,  and,  so  far  as  the  dogmas  of  the  common  law  are  incon- 
sistent therewith,  they  are  necessarily  abrogated,  and  form  no 
part  of  the  reformed  American  procedure.  The  most  conspicu- 
ous and  characteristic  of  these  dogmas  are  the  notions  as  to  joint 
rights,  and  as  to  the  impossibility  of  severing  in  the  judgment 
when  such  rights  have  been  averred  as  the  causes  of  action  ;  and 
these  notions  must  be  abandoned,  if  full  force  and  effect  are  to  be 
given  to  the  language  used  by  the  legislature.  The  whole  dis- 
cussion is  thus  reduced  to  a  single  question :  Are  these  pro- 
visions of  the  code  to  be  accepted  in  their  entirety,  with  all  their 
legitimate  and  necessary  consequences,  or  are  they  to  be  limited 
and  restricted  by  some  exception  grafted  upon  them  by  the 
courts,  and  are  their  consequences  to  be  abridged  and  their  oper- 
ation to  be  confined  to  those  actions  which,  under  the  former 
system,  would  have  been  called  equitable  ?  I  have  already,  in 
the  former  portion  of  this  section,  stated,  as  the  guiding  principle 
of  interpretation  adopted  by  most  of  the  courts,  the  doctrine  that 
the  equitable  rules  of  the  codes  were  to  be  applied  in  all  actions, 
whatever  be  their  nature.     This  is  certainly  the  inference  to  be 


250  CIVIL  REMEDIES. 

drawn  from  the  jadicial  decisions  ivhen  a  rjeneral  theory  of  inter- 
pretation ivas  the  subject  of  discussion  ;  and  one  theory,  when  ac- 
cepted, ought,  beyond  a  doubt,  to  be  carried  out  in  all  the  minor 
details,  in  the  work  of  creating  all  the  practical  rules  for  admin- 
istering justice,  if  an}^  consistent  and  symmetrical  result  is  desired. 
But,  unfortunately,  in  comparing  the  decided  cases,  and  in  en- 
deavoring to  deduce  from  them  a  body  of  practical  rules,  we  shall 
find  so  much  inconsistency  and  vacillation  in  the  judgments  of 
even  the  same  tribunals,  that  we  are  sometimes  forced  to  doubt 
whether  miy  general  principle  of  construction  was  ever  intended 
to  be  adopted  by  the  courts,  whether  they  ever  accepted  any 
theory  of  interpretation,  and  proceeded  to  work  from  it  as  a 
foundation  in  constructing  a  system  of  procedure.  In  regard  to 
the  particular  matter  now  under  consideration,  if  we  collect  and 
compare  the  decisions  which  have  been  made  in  the  different 
States,  it  Mill  be  difficult,  if  not  impossible,  to  say,  ujjon  their 
authority,  that  any  definite  rule  has  been  established  determining 
the  effect  of  a  misjoinder  of  plaintiffs. 

§  211.  It  is  certainly  settled  beyond  a  doubt  that,  in  all  equi- 
table actions,  and  in  all  actions  where,  upon  equitable  principles, 
a  coplaintiff  may  sometimes  be  added,  not  because  he  is  jointly 
interested  with  the  other,  but  because  his  presence  as  a  party  is 
considered  necessary  to  a  complete  determination  of  the  issues,  — 
as  where  a  husl)and  is  sometimes  added  in  an  action  brought  by  a 
wife  touching  her  separate  property,  —  the  equitable  rule  applies 
in  its  full  force,  and  a  misjoinder  of  plaintiffs  is  not  a  defence  to 
the  suit ;  it  is  neither  a  ground  of  demurrer,  nor  can  it  be  set  up 
in  the  answer  as  a  bar  to  the  relief  demanded  in  the  complaint  or 
petition.  The  name  of  the  unnecessary  plaintiff  may  be  struck 
out  by  the  court,  upon  motion ;  or,  if  the  cause  proceeds  to  trial, 
a  judgment  may  be  rendered  in  favor  of  the  plaintiff  entitled 
thereto,  and  the  action  dismissed  as  against  the  others.^     The 

1  Ackley  v.  Tarbox,  31   N.   Y.   564 ;  General  Term  of  the  Supreme  Court,  be- 

Allen  V.  Buffalo,  38  N.  Y.  280.     Ackley  cause  of  the  misjoinder.      Tlie  Court  of 

V.  Tarbox  was  an  action  by  husband  and  Appeals  held  that  he   was  an   improper 

wife  to  recover  damages  for  the  conver-  party,  but  that  the  judgment  should  not 

sion  of  a  chattel  belonging  to  the  wife,  have  been  reversed  on  that  account.  "  As 

The  pleadings  showed  that  the  suit  was  soon   as  the  objection  was  taken,  it  was 

really  in  favor  of  the  wife,  and  that  the  the  duty  of  the  court  to  have  stricken  his 

husband  was  added  under  a  notion  that  name  from  the  proceedings  in  the  action, 

lie  was  a  necessary  party.     The  judgment  It  can  now  be  done,  and  the  judgment 

lor    the   plaintiffs   was  reversed   by  the  stand  as  it  ought,  —  a  judgment  for  the 


MISJOINDER   OF   PLAINTIFFS.  251 

changes  made  by  the  codes  themselves,  and  also  by  special  stat- 
utes relating  to  the  property  rights  of  married  women,  have  cer- 
tainly extended  this  rule  to  many  cases  not  strictly  equitable, 
even  to  cases  which  could  not  have  been  maintained  at  all  while 
the  common  law  was  in  its  integrity. 

§  212.  There  is  another  class  of  decisions,  made  in  actions  of  a 
similar  nature  to  those  last  mentioned,  —  that  is,  actions  strictly 
equitable,  and  those  in  which  a  plaintiff  is  added  in  pursuance  of 
a  supposed  positive  rule  of  practice,  although  no  joint  legal  right 
is  alleged,  —  in  which  it  has  been  held  that,  if  the  misjoinder  of  a 
plaintiff  appears  upon  the  face  of  the  complaint  or  petition,  the 
defendant  may  demur  as  against  the  party  thus  improperly  joined, 
on  the  ground  that  the  pleading  does  not  state  facts  suiScient  to 
constitute  a  cause  of  action  in  his  favor ;  or,  if  no  demurrer  is  in- 
terposed, the  same  objection  may  be  raised  at  the  trial,  and  the 
action  dismissed  as  to  him.  If  the  misjoinder  does  not  appear 
upon  the  face  of  the  pleading,  the  defence  must  be  set  up  in  the 
answer.^  The  principle  of  this  class  of  decisions  is  the  same  as 
that  involved  in  the  cases  described  in  the  preceding  paragraph. 
The  actions  in  which  this  method  of  raising  the  objection  of  a 
misjoinder  is  ]3ermitted,  may  be  equitable  or  may  be  legal  ;  but, 
if  the  latter,  they  are  not  based  upon  a  joint  legal  right  alleged 
to  be  held  by  all  the  plaintiffs.  In  all  of  them  the  right  of  ac- 
tion is  assumed  to  be  possessed  by  one  or  more  of  the  plaintiffs, 
who  are  the  real  parties  in  interest,  and  the  other  parties  are 
added  through  some  supposed  requirement  of  form  or  of  policy. 

§  213.  We  are  finally  brought  to  the  case  of  an  action  strictly 
legal  in  its  nature,  brought  by  two  or  more  plaintiffs  in  whose 
favor  a  joint  right  is  averred  as  the  ground  of  recovery.  The 
courts  of  some  States  have  distinctly  asserted  and  applied  the 

wife."     Although  this  action  was  nomin-  the  same  objection  could  be  raised  on  the 

ally  joint,  because  it  demanded  judgment  trial,  and   the  complaint  dismissed  as  to 

for  the  plaintiffs,  yet  the  right  alleged  was  him,  but  not  as  to  both.     No  joint  cause 

plainly  several,  and  the  case   is  not  an  of    action  was    here    alleged,    although, 

authority  on   the  question  of  joint  legal  nominally,  the  action  was  joint.     See  also 

rights  averred  in  a  complaint.  Willard  i-.  Eeas,  26  Wise.  540,  -544,  which 

1  Palmer   v.    Davis,    28  N.    Y.    242.  holds  that,  in  an   action  by  two  or  more 

Palmer  and  wife  sued  on  an  award  made  plaintiffs,  a  general  demurrer  against  all 

in  her  favor.     The  Court  of  Appeals  held  these  plaintiffs,  on   the  ground  of  a  want 

that  the  husband  was  not  a  proper  plain-  of  sufficient  facts,  is  bad  if  a  good  cause 

tiff;  that,  as  this  appeared  on  the  face  of  of  action  is  alleged  in   favor  of  one  of 

the  complaint,  the  defendant  might  have  them, 
demurred  generally  as  to  him  ;  and  that 


252  CIVIL   REMEDIES. 

ancient  common-law  rule  under  these  circumstances,  notwith- 
standing the  provisions  of  the  codes,  and  notwithstanding  even 
the  liberal  scheme  of  interpretation  which  had,  as  a  general  theory^ 
been  adopted  by  the  same  tribunals.  When,  in  such  an  action,  a 
joint  right  is  averred  as  arising  from  contract  or  from  the  owner- 
ship of  land  or  chattels,  while  in  fact  no  joint  right  in  all  exists, 
but  only  a  several  right  held  by  one  or  a  joint  one  held  by  some, 
this  error,  according  to  the  construction  now  stated,  goes  to  the 
entire  proceeding,  and  defeats  the  suit  as  against  all  the  plain- 
tiffs. If  the  error  appears  upon  the  face  of  the  complaint  or 
petition,  the  objection  may  be  raised  by  a  general  demurrer  inter- 
posed against  all  the  plaintiffs,  on  the  ground  that  facts  sufficient 
to  constitute  a  cause  of  action  are  not  stated  in  the  pleading; 
and,  in  the  absence  of  a  demurrer,  the  same  objection  may  be 
taken  at  the  trial  by  a  motion  for  a  nonsuit  or  for  a  dismissal  of 
the  action.  Finally,  if  the  error  is  not  apparent  on  the  face  of 
the  pleading,  the  defence  may  be  set  up  in  the  answer,  and  is, 
perhaps,  admissible  under  the  general  denial.  This  is  plainly  the 
original  common-law  doctrine,  unaffected  by  the  reform  legisla- 
tion, and  it  proceeds  upon  the  assumption  that  the  cause  of  ac- 
tion is  a  joint  one,  that  this  attribute  of  jointness  is  as  essential 
to  the  maintenance  of  the  alleged  right  as  any  other  material 
fact,  and  that  the  inability  to  establish  the  particular  averment 
is  not  a  mere  variance,  but  is  a  complete  failure  of  proof. ^-     As 

1  Bartges  i>.  O'Neil,  13  Ohio  St.  72;  from  the  defendant.  Tlie  purchase  price 
Masters?;.  Freeman,  17  Ohio  St.  323;  was  paid  by  the  husband,  but  the  convey- 
De  Bolt  V.  Carter,  31  Ind.  35-5  ;  Goodnight  ance  was  made  to  the  wife.  The  petition 
i\  Goar,  30  Ind.  418  ;  Berkshire  r.  Schultz,  alleged  fraudulent  representations,  by 
25  Ind.  523;  Lippcrd  j;.  Edwards,  39  Ind.  which  the  plaintiffs  were  induced  to  en- 
165;  Estabrook  v.  Messersmith,  18  Wise,  gage  in  the  transaction,  and  a  judgment 
545;  Frans  v.  Young,  24  Iowa,  375;  Gi-  for  the  joint  damages  alleged  to  have  been 
raud  V.  Beach,  3  E.  D.  Smith,  337.  Cer-  sustained  by  both  was  demanded.  A 
tain  of  these  cases  inferenlia/li/  support  the  demurrer  for  want  of  sufficient  facts  hav- 
propositions  contained  in  the  text,  by  ing  been  overruled,  the  cause  went  to 
holding  that  a  misjoinder  of  plaintiffs  in  trial.  No  representations  were  shown  to 
such  actions  may  be  taken  advantage  of  have  been  made  to  the  wife,  nor  did  she 
by  a  general  demurrer,  upon  the  ground  participate  in  the  negotiation  and  pur- 
that  sufficient  facts  are  not  alleged  ;  the  chase,  nor  pay  any  of  the  price  ;  the  con- 
others,  however,  sustain  these  propositions  veyance  was  simply  made  to  her  as  the 
to  their  full  extent.  As  the  subject  is  one  result  of  the  bargain  at  the  husband's  re- 
of  great  practical  importance,  I  shall  quote  quest.  It  will  be  seen  that  the  cau.se  of 
from  these  decisions  at  some  length.  Bart-  action,  as  «/%«/,  was  strictly  a  joint  one. 
ges  r.  O'Neil,  13  Ohio  St.  72,  was  an  action  The  plaintiffs  did  not  sue  in  their  marital 
by  a  husband  and  wife  to  recover  damages  capacity  ;  tlie  case  was  the  same  as  though 
for  deceit  in  the  sale  of  lauds  purchased  any  other  person  had  taken  the  part  in 


MISJOINDER   OF    PLAINTIFFS. 


253 


an  illustration  :  if  the  complain 
A.  and  B.  were  partners,  and  as 

the  transaction  taken  by  the  wife,  and 
had  been  made  a  coplaintiff.  The  Su- 
preme Court  of  Oiiio  held  that  the  petition 
disch)sed  no  cause  of  action  belonging  to 
the  plaintiffs  jointly,  as  was  averred,  and 
that  this  detect  could  be  be  taken  ad- 
vantage of  by  a  general  demurrer  for  a 
want  of  sufficient  facts ;  and  tliat  the 
action  should  have  been  dismissed  on  the 
trial  for  the  same  reason.  Compare  this 
decision  with  that  made  by  the  New  York 
Court  of  Appeals  in  Siniar  v.  Canaday,  53 
N.  Y.  2U8,  which,  to  a  certain  extent, 
presented  the  same  peculiar  features. 
The  Ohio  court  reaffirmed  the  doctrine 
in  the  subsequent  case  of  Masters  v.  Free- 
man, 17  Ohio  St.  323,  which  was  a  legal 
action  brought  by  two  plaintiffs,  alleging 
an  indebtedness,  to  them  jointly.  An 
answer,  setting  up  facts  showing  that 
there  was  no  joi!it  right  as  claimed,  having 
been  struck  out,  and  the  plaintiflf's  having 
recovered  a  judgment,  the  Supreme  ("lourt 
reversed  this  judgment,  holding  that  the 
defence  contained  in  the  answer  was  a 
complete  bar  to  the  recovery,  and  also 
that  if  the  error  appeared  upon  the  face  of 
tlie  petition,  a  demurrer  for  want  of  suf- 
ficient facts  was  <t,  proper  mode  of  pre- 
senting the  objection,  but  that  it  was  not 
waived  by  an  omission  to  demur.  Esta- 
brook  V.  Messersmith,  18  Wise.  545,  was 
an  action  by  two  partners,  alleging  their 
partnership,  their  joint  ownership  of  cer- 
tain goods,  and  a  wrongful  conversion 
thereof  by  the  defendants.  It  appeared 
on  the  trial  that  one  of  the  plaintiffs  had 
been  guilty  of  a  fraud  upon  his  creditors 
in  respect  of  the  property  in  question, 
wliich,  as  the  court  held,  precluded  him 
from  recovery ;  and  it  was  thereupon 
claimed  by  the  defendants  that,  although 
the  other  plaintiff  was  innocent  of  the 
fraud,  there  could  be  no  recover}'  in  any 
form, — not  by  the  plaintiffs  jointly,  be- 
cause one  of  them  was  unable  to  maintain 
the  action  ;  and  not  by  the  innocent  part- 
ner, because  the  right  averred  in  the  com- 
plaint was  a  joint  one.  The  plaintiffs 
were  permitted,  however,  to  recover  the 
value  of  the  innocent  partner's  interest. 
This  judgment  was  reversed  by  the  Su- 
preme Court,  and  the  grounds  of  the  de- 


t  should  allege  that  the  plaintiffs 
such  had  sold  and  delivered  to 

cision  were  thus  stated  by  Dixon  C.  J.  (p. 
549)  :  "  The  plaintiffs  were  partners,  and 
sued  for  the  alleged  wrongful  conversion 
of  their  partnership  property ;  and  such 
is  the  nature  of  their  legal  right  —  they 
are  so  indissolnbly  blended  —  that  they 
must  not  only  join  in  an  action  at  law, 
but  a  right  of  action  must  be  established  in 
both,  or  no  recovery  can  be  had.  It  is  a 
general  principle,  applicable  to  suits  of 
this  nature,  that  all  must  be  entitled  to 
judgment,  or  none  ;  anil  in  cases  where 
either  party  is  precluded  on  the  ground  of 
fraud,  the  fraud  binds  not  only  the  guilty 
partner,  but  the  innocent  partner  in  that 
suit.  ...  It  would  seem  that,  if  the  de- 
frauded party  [meaning  the  innocent 
partner]  has  any  remedy,  it  is  only  by  a 
suit  in  equity,  in  which  the  objection  of 
joining  his  guilty  copartner  as  a  party 
plaintiff  is  easily  obviated."  I  must  re- 
mark, in  passing,  that  the  last  observation 
is  certainly  a  strange  one,  in  the  fiice  of 
the  statutory  provision  contained  in  the 
Wisconsin  code,  which  purports  to  abol- 
ish all  distinctions  between  legal  and 
equitable  actions.  That  a  plaintiff  should 
be  turned  out  of  court  in  one  action  called 
Ifigxl,  and  should  be  told  that  he  must 
bring  another  action  called  equitable,  for 
exactly  the  same  demand,  and  upon  ex- 
actly the  same  allegations  of  fact,  and 
that,  in  the  latter  suit,  the  particular 
and  technical  ground  of  his  defeat  in  the 
former  one  could  not  be  objected  to  his 
recovery,  seems,  to  say  the  least,  to  be 
a  recognition  of  the  "distinction"  which 
the  law-making  power  had  so  expressly 
abrogated.  The  Supreme  Court  of  Indi- 
ana has  approved  the  same  doctrine  in 
substance,  although  in  a  form  somewhat 
modified.  In  Berkshire  v.  Shultz,  25  Ind. 
523,  which  was  an  equitable  action,  the 
court  stated  the  doctrine  in  a  general  form, 
that  when  plaintiffs  unite  in  bringing  an 
action,  and  the  complaint  does  not  show 
a  joint  cause  of  action,  a  demurrer  will 
lie  on  the  ground  that  sufficient  facts  are 
not  stated  to  constitute  a  cause  of  action. 
Goodnight  i-.  Goar,  30  Ind.  418,  was  a 
strictly  legal  action,  brought  by  three 
plaintiffs,  the  complaint  disclosing  a  sepa- 
rate cause  of  action  in  favor  of  each,  but 


254  CIVIL  REMEDIES. 

the  defendant  certain  goods,  for  a  stipulated  price,  and  should 
demand  a  judgment  therefor,  and  on  the  trial  it  should  appear 
that  A.  and  B.  were  not  partners  as  averred,  and  did  not  jointly 
sell  and  deliver  the  chattels  to  the  defendant,  but  that  in  fact  the 
same  were  sold  and  delivered  by  A.  alone,  B.  having  no  interest 
in  or  connection  with  the  transaction,  in  pursuance  of  the  rule 
adopted  in  these  decisions  no  judgment  could  be  rendered  for  A. 
separately ;  the  action  would  entirely  fail  as  respects  both  the 
plaintiffs.  It  thus  appears  that,  in  at  least  three  States,  the 
courts  have,  in  the  most  exphcit  manner,  and  in  well-considered 
opinions,  reaffirmed  the  ancient  common-law  doctrine  in  respect 
to  legal  actions  brought  by  two  or  more  plaintiffs  jointly ;  and 
have  held  that  the  joint  right  must  be  proved  as  alleged,  or  the 
action  must  fail  as  to  all  the  plaintiffs.  In  other  States,  it  is 
merely  said  that  a  misjoinder  is  ground  for  a  demurrer  interposed 
to  all  the  plaintiffs,  for  the  cause  that  the  complaint  or  petition 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 

§  214.  The  question  has  been  presented  to  the  New  York 
Court  of  Appeals,  but  has  not  been  passed  upon  in  such  an 
explicit  manner  as  necessarily  to  establish  the  rule  for  that  State. 
In  an  action  brought  by  two  plaintiffs,  G.  and  C,  to  recover  dam- 
ages for  an  alleged  fraud,  the  action  being  in  form  joint,  and  the 
demand  of  judgment  being  for  damages  due  to  the  plaintiffs 
jointly,  the  complaint  was  dismissed  at  the  trial,  because  it 
appeared  that  the  right  of  action  was  held  by  one  of  the  plain- 
tiffs alone.  In  respect  to  this  ruling,  the  Commission  of  Appeal 
said :  "  ProV)ably  the  court  had  the  power  in  this  action,  if  the 
claim  had  been  made,  to  have  awarded  to  C.  his  damages,  giving 
judgment  against  the  other  plaintiff.  But  the  court  was  not 
bound  to  do  this,  and  committed  no  error  in  defeating  the  plain- 
no  joint  right  in  favor  of  any.  Upon  a  joined,  or  by  so  amending  the  complaint 
general  demurrer  for  want  of  sufficient  as  to  show  a  right  of  action  in  all  tiie  par- 
facts,  the  doctrine  of  the  last  case  was  re-  ties."  But,  in  Lipperd  v.  Edwards,  39 
peated,  and  the  action  was  dismissed  as  Ind.  165,  170,  the  ancient  rule  was  stated 
to  all  the  plaintiffs,  although  it  was  con-  in  all  its  severity.  "  It  seems  to  be  the 
cedcil  that  each  had  a  valid  claim,  which  law  now,  as  it  was  before  the  code  of  civil 
he  could  have  enforced  in  a  separate  suit,  practice,  that,  when  two  or  more  join  in 
In  De  Bolt  v.  Carter,  31  Ind.  355,  a  re-  an  action,  the  complaint  must  show  a 
hixation  of  the  doctrine  was  intimated,  right  of  action  in  both  or  all  of  tliem ;  or 
After  repeating  the  rule  laid  down  in  the  it  must  be  held  insufficient,  on  a  demurrer 
two  preceding  decisions,  the  court  said  :  assigning  for  cause  that  it  does  not  state 
"  The  defect  can  only  be  cured  hy  striking  facts  sufficient  to  constitute  a  cause  of 
out   the    name   of  the    plaintiff  iiaproperly     action." 


MISJOINDER   OF   PLAINTIFFS.  255 

tiffs,  because  they  did  not  establish  a  cause  of  action  in  which 
they  were  both  interested."  ^  This  conclusion  is  certainly  very 
unsatisfactory.  It  can  hardly  be  possible  that  it  is  a  matter  of 
discretion  with  the  court,  at  the  trial,  whether  it  will  permit  a 
severance  in  the  judgment  or  will  dismiss  the  action  entirely. 
The  rights  of  litigant  parties  cannot  depend  upon  so  varj^ing  a 
criterion  as  the  opinion  or  wdiira  of  an  individual  judge.  In  a 
subsequent  case,  where  the  action  was  brought  by  a  husband  and 
wife  to  recover  damages  for  a  fraud  alleged  to  have  been  done  to 
them  jointly,  and  in  which  a  joint  right  of  action  was  distinctly 
averred,  the  same  court  announced  the  rule  in  the  following 
manner,  but,  as  it  was  entirely  unnecessary  to  the  decision  of  the 
case,  the  expression  of  opinion  cannot  be  regarded  as  am*  thing 
more  than  a  dictum :  "  The  defendant  moved  to  dismiss  the 
complaint  upon  several  grounds,  and,  1st,  that  the  plaintiffs  could 
not  maintain  a  joint  action,  and  that  there  was  thereby  a  mis- 
joinder of  parties  plaintiff.  This  point  is  not  rested  upon  the 
marital  relation  of  the  plaintiffs,  and  the  existence  of  that 
relation  may,  in  considering  it,  be  ]3ut  out  of  view\  It  is  an  objec- 
tion which  may  be  taken  on  the  trial.^  But  it  is  not  an  objec- 
tion which  affords  good  grounds  for  a  motion  to  dismiss  the 
complaint  of  both  plaintiffs,  if  either  of  them  has  shown  that  he 
or  she  has  a  good  cause  of  action.  In  such  case  the  motion  must 
be  for  a  dismissal  of  the  complaint  of  the  plaintiff  in  whom  no 
right  of  action  appears.^  Whether  either  of  the  plaintiffs  had 
shown  a  good  cause  of  action  will  be  considered  under  the  next 
two  heads."  ^ 

1  Calkins  v.  Smith,  48  N.  Y.  614,  619,  action  like  the  present,  brought  upon  an 
per  Earl  J.  alleged  joint  right,  and  demanding  a  joint 

2  Citing  code,  §  144  (6),  §  148;   Palm-  judgment.     Still  the  opinion  of  Folger  J. 
er  V.  Davis,  28  N.  Y.  242.  would  be  conclusive  of  the  question,  if  it 

8  Simar  v.  Canaday,  53  N.  Y.  298,  301,  was  not  wholly  unnecessary  to  the  decir 

per  Folger  J.     The  learned  judge  is  un-  sion.     He  goes  on,  and,  in  a  subsequent 

fortunate  in   his   citation   of    Palmer   v.  portion  of  his  elaborate  judgment,  liolds 

Davis  as  an   authority   for   his   position.  Xh&i  both  the  plaintiffs  actually  held  and  pos- 

That  case  was  an  action  by  a  wife  to  re-  sessed  the  joint  right  of  action,  as  alleged,  and 

cover  damages  for  the  conversion  of  chat-  were  entitled   to  the  joint  judgment  de- 

tels  belonging  to  her  exclusivley  ;  and  the  manded.     This  being  tlie  actual  state  of 

husband  was  joined  as  plaintifl' because  it  the  case,  all  speculations  as  to  what  could 

was    supposed  he  was  a  necessary  party  or  could  not  be  done  if  they  had  not  pos- 

by  reason  of  the  marital  relation.     The  sessed  such  a  joint  cause  of  action,  are,  of 

complaint  showed  that  the  interest  was  course,  entirely  obiter.     This  expression 

exclusively  in  the  wife,  and  the  decision  of  opinion  doubtless  indicates  the  views 

proceeded  upon  a  ground,  as  was  shown  in  of  the  judges  upon  an  important  question ; 

a  preceding  paragraph  (§  212),  which  has  but  it  is  not  an  authority  as  a  decided  point. 

no  relation  whatever  with  a  purely  legal  S.  P.  Green  v.  Green,  69  N.  C.  294,  298. 


256  CIVIL    REMEDIES. 

§  215.  Altliougli  not  entitled  to  the  weight  of  authority  as  a 
deeision,  the  doctrine  last-cjuoted  from  the  opinion  of  the  New 
York  Court  of  Appeals  is  in  com})lcte  accordance  with  the  true 
spirit  and  evident  intent  of  tlie  reform  legislation.  The  conclu- 
sions reached  by  the  courts  of  Ohio,  Wisconsin,  and  Indiana,  in 
the  cases  heretofore  cited,  plainly  result  from  a  failure  to  grasp 
the  central  principle  of  interpretation  Avhich  should  be  applied 
in  construing  the  codes  of  procedure,  and  to  push  it  to  its  legiti- 
mate consequences.  That  principle,  which  had  been  fully  recog- 
nized by  the  same  tribunals  under  other  circumstances,  is  the 
purely  equitable  nature  of  the  statutory  provisions  regulating  the 
subject  of  parties,  and  the  application  of  the  equitable  theory  to 
the  civil  action  in  all  its  phases,  and  under  all  its  uses,  without 
exception  or  limitation.  This  is  now  conceded,  almost  univer- 
sally, to  be  the  true  interpretation  of  the  clauses  of  the  codes 
under  consideration,  whenever  the  mode  of  interpretation  is  to 
be  stated  in  a  general  and  comprehensive  manner.  The  confu- 
sion and  conflict  of  decision  shown  in  the  preceding  paragraphs 
ai'ise  from  the  fact  that  courts,  in  determining  the  special  rules 
applicable  to  particular  classes  of  cases,  have  been  unwilling  to 
carry  out  the  principle  which  they  have  accepted  in  its  most  gen- 
eral form,  and  to  adopt  the  results  which  necessarily  flow  from 
it ;  the}^  have  shrunk  from  the  changes  in  the  old  and  familiar 
methods  which  such  a  course  would  produce.  It  is  very  plain, 
however,  that,  if  we  are  ever  to  have  a  uniform,  consistent,  sim- 
ple, and  symmetrical  system  of  procedure  as  the  outcome  of  the 
reform  legislation,  the  courts  must  ])e  willing  to  follow  the  gen- 
eral principles  of  interpretation  to  their  legitimate  conclusions. 
A  system  in  which  the  equitable  doctrine  as  to  parties  and  judg- 
ments is  permitted  to  work  its  effect  upon  legal  actions  to  a  par- 
tial extent,  while  the  ancient  legal  doctrine  is  applied  in  other 
instances,  Avould  be  more  objectionable  even  than  the  former 
complete  division  between  equitable  and  legal  proceedings.  As 
the  codes  do  not  indicate  any  line  where  the  equitable  doctrine  is 
to  stop  and  the  legal  to  commence,  in  determining  the  practical 
rules,  the  position  of  this  line  must  depend  upon  the  views  of 
individual  judges  and  courts,  and  .thus  an  element  of  uncertainty 
and  confusion  is  introduced  into  the  procedure,  which  can  never 
be  removed ;  there  being  no  principle  by  which  to  settle  the 
respective  limits  of  the  two  theories  or  doctrines  as  to  parties,  no 


MISJOINDER   OP   PLAINTIFFS.  257 

fixed  sj^stem  of  practical  rules  would  ever  be  established.  If,  on 
the  other  hand,  the  equitable  doctrine  should  be  not  only  stated 
as  the  correct  general  theory  of  interpretation,  but  should  be 
honestly  followed  out  in  its  application  to  all  cases,  the  same 
practical  rules  would  be  deduced  alike  for  legal  and  for  equitable 
actions,  and  the  resulting  system  would  be  definite,  certain,  and 
consistent,  —  the  system  beyond  a  doubt  contemplated  by  the 
legislatures  when  they  enacted  the  codes  in  the  several  States. 
If  this  were  done,  the  ancient  rules  of  the  common  law  respect- 
ing the  nature  of  joint  rights  when  set  up  as  the  basis  of  recov- 
ery, and  the  effect  of  alleging  such  a  right  in  favor  of  two  or 
more  plaintiffs,  would  disappear,  and  a  severance  in  the  judg- 
ment would  be  as  much  a  matter  of  course  in  legal  actions  as  in 
equitable  suits. 

§  216.  There  is  still  another  case  in  respect  of  which  there 
seems  to  be  a  unanimity  of  decision.  When  an  action  is  brought 
by  two  or  more  plaintiffs,  and  the  averments  of  the  complaint  or 
petition  show  that  one  or  more  of  them  have  been  improperly 
joined  as  coplaintiffs  with  the  rest,  the  defendant  may  interpose 
a  demurrer  as  to  such  plaintiff  or  plaintiffs,  not  because  of  a 
defect  of  parties,  nor  because  of  a  misjoinder,  but  because  the 
complaint  or  petition  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action  in  respect  to  these  plaintiffs.  The  distinction 
between  this  case  and  the  one  last  considered  is  evident.  In  the 
latter,  the  demurrer  is  to  all  the  plaintiffs,  and  the  objection 
extends  to  the  entire  action  upon  the  alleged  ground  that  no 
joint  claim  or  cause  of  action  is  shown  to  exist  in  all  the  plain- 
tiffs. In  the  present  case,  it  is  conceded  that  a  cause  of  action  is 
shown  in  favor  of  one  or  more  of  the  plaintiffs,  and  the  objec- 
tion goes  only  to  the  others  in  whose  favor  no  cause  of  action 
appears.  This  mode  of  objecting  to  a  misjoinder  of  plaintiffs 
may  be  used  in  legal  as  well  as  in  equitable  actions.  Of  course, 
if  the  objection  does  not  appear  upon  the  face  of  the  pleading, 
but  exists  as  a  matter  of  fact,  it  may  and  should  be  set  up  as  a 
defence  in  the  answer.^ 

1  The   rule   as   stated   in   the  text  is    pie  v.  Crooks,  53  N.  Y.  648.    In  Missouri 
either  expressly  approved,  or  is  impliedly     and  California  the  codes  expressly  state, 
acknowledged,  in  several  of  the  cases  cited     as  one  ground  of  demurrer,  the  misjoinder 
under  the  preceding  paragraph.     See  also    of  the  parties,  plaintiff  or  defendant. 
Willard  v.  Reas,  26  Wise.  540,  544 ;  Peo- 

17 


258  CIVIL    REMEDIES. 


Rules  as  to  Plaintiffs  in  Particular   Classes  of  Cases. 

§  217.  I  now  pass  from  this  examination  of  the  doctrine  in  its 
g'eneral  scope  to  its  application  in  the  various  classes  of  cases 
which  can  arise  in  the  administration  of  justice.  The  further 
discussion  will  be  pursued  in  the  following  order:  Firsts  Parties 
plaintiff  in  legal  actions  ;  Second^  Actions  by  or  between  husband 
and  wife ;  Third,  Parties  plaintiff  in  equitable  actions.  The 
first  of  these  divisions  will  be  separated  into  1.  Actions  by 
owners  in  common  and  by  joint  owners  of  land  ;  2.  Actions  by 
joint  owners  of  chattels;  3.  Actions  by  persons  having  a  joint 
right  arising  from  contract ;  4.  Actions  by  persons  having  sev- 
eral rights  arising  from  contract ;  5.  Actions  by  persons  having  a 
joint  right  arising  from  tort ;  6.  Actions  by  persons  having  sev- 
eral rights  arising  from  torts.  The  second  and  third  of  the 
general  divisions  do  not  admit  of  a  similar  subdivision. 

§  218.  First :  The  Union  or  Sei^aration  of  Plaintiff's  in  so-called 
Legal  Actions.  I.  Actions  hy  owners  in  common.,  or  hy  joint  owners 
of  land.  The  change  in  the  common  law  produced  by  statute 
throughout  the  United  States  has  practically  abolished  joint 
ownership  in  land,  except  in  the  case  of  those  holding  alieni 
juris.,  as  trustees.  The  statutory  rule  is,  I  believe,  quite  univer- 
sal among  the  States,  that  when  two  or  more  persons  succeed  by 
inheritance  to  the  same  land,  their  ownership  is  common  and  not 
joint,  and  when  land  is  conveyed  to  several  persons  in  their  own 
right,  without  any  express  direction  to  the  contrary,  their  owner- 
ship also  is  common.^  The  exceptions  to  this  rule  are  trustees 
who  are  generally  omitted  from  the  operations  of  the  statutes,  so 
that  a  grant  or  a  devise  to  several  as  trustees  creates  a  joint  owner- 
ship ;  and  in  certain  States,  as  in  New  York,  the  peculiar  modi- 
fication of  joint  estates,  created  by  a  conveyance  to  a  husband 
and  wife,  is  held  to  be  unaffected  by  the  statutes,  and  to  exist  as 
at  the  common  law.  On  the  other  hand,  the  legislation  of  some 
States  has  abolished  joint  ownership  in  an  absolute  manner,  so 
that  it  cannot  be  created  even  by  the  act  of  the  parties.  As  a 
conclusion,  it  is  enough  to  say  that  the  common-law  joint  tenancy 
of  land  by  persons  holding  sui  juris  does  not  practically  exist  in 
this  country .2     At  the  common  law  all  the  joint  owners  were 

1  Wash,  on  Keal  Prop.,  vol.  1,  p.  409  -  Wash,  on  Eeal  Prop.,  vol.  1,  p.  409 
(note).  (note). 


ACTIONS    BY    OWNERS    OF    LAND.  259 

required  to  unite  in  any  action,  whether  real  or  personal,  based  upon 
their  proprietary  right.  With  owners  in  common,  the  rule  was  not 
so  uniform.  In  personal  actions  for  injuries  done  to  the  land,  it  was 
proper  for  all  the  owners  to  unite  ;  in  actions  to  recover  posses- 
sion, however,  each  sued  for  his  individual  interest,  although  this 
particular  doctrine  was  doubtless  modified  in  many  States,  as  it 
was  in  New  York.  Finally,  in  actions  for  rent,  if  the  letting 
was  joint,  or  if  tlie  reservation  was  of  an  entire  rent  to  all,  all 
would  unite  as  plaintiffs;  but  if  the  rent  was  reserved  to  them 
separately  in  distinct  parts,  each  must  sue  for  his  own  share. ^  It 
should  be  remembered  that,  in  the  action  of  ejectment  at  the 
common  law,  the  plaintiff  was  the  fictitious  person  called  John 
Doe,  and  the  real  claimant  was  his  lessor.  It  was  only  in  the 
United  States,  where  the  fictions  of  the  action  had  generally  been 
abolished  by  statute,  that  it  was  possible  for  joint  owners  or 
owners  in  common  to  appear  as  the  actual  ijlaintiffs  in  ejectment. 
I  now  pass  to  cases  decided  since  the  enactment  of  the  codes  in 
the  several  States. 

§  219.  Where  the  rent  is  entire,  owners  in  common  of  the 
demised  land  may  unite  in  an  action  to  recover  it  from  the 
lessee ;  and  upon  the  same  principle  they  may  join  in  an  action 
to  recover  the  rent  from  a  person  to  whom  it  had  been  paid  for 
their  use  ;  for  example,  devisees  in  fee  in  remainder,  after  a  life 
estate,  may  join  in  a  suit  against  the  executor  of  the  deceased 
life-tenant  to  recover  the  rent  which  he  had  collected  from  the 
lessee  subsequent  to  the  death. ^  A  joinder  of  all  does  not,  how- 
ever, seem  to  be  absolutely  necessary.  It  seems  that  each  may 
sue  for  his  own  share  of  the  rent,  even  though  it  accrue  as  an 
entire  sum  to  all  the  owners  in  common.^     The  only  possible 

1  See  supra,  §§  187,  189,  190,  1  Ch.  These  authorities  will  also  show  that  the 
PI.  (Springfield  ed.,  1840),  pp.  13,65.  plaintiffs,  liaving  the  same  common   in- 

2  Marshall  v.  IMoseley,  21  N.  Y.  280,  terest  in  the  money  which  the  defendant 
287,  per  Comstock  J.  :  "  The  remaining  received  as  rent  that  belonged  to  them, 
question  is,  whether  the  plaintiffs  can  can  unite  in  their  action  to  recover  it  out 
maintain  tliis  action  jointly.  We  are  of  of  his  hands,  and  this,  we  think,  is  also 
the  opinion  that  they  can.  If  the  rent  had  clear  upon  principle."  See  Cruger  v. 
not  been  collected,  the  plaintiffs,  as  ten-  McLaury,  41  N.  Y.  219,  which  settles  the 
ants  in  common  of  the  reversion,  might  doubt  stated  by  Comstock  J.,  and  holds 
have  joined  in  an  action  to  recover  it.  that  one  of  the  owners  in  common  may 
This  rule  appears  to  be  extremely  well  sue  for  his  share  of  an  entire  rent.  See 
settled,  the  only  doubt  suggested  by  the  infra,  §  220,  n.  (2). 

authorities  being  whether  they  could  sever         »  Jones  v.  Felch,  3  Bosw.  63 ;  Porter 
in  their  suits  if  they  had  elected  to  do  so.     v.  Bleiler,  17  Barb.  149.     In  tlie  first  of 


2G0 


CIVIL    REMEDIES. 


alternative,  however,  is  a  suit  by  all  or  a  suit  by  each  for  his 
own  portion  separately  ;  an  action  cannot  be  maintained  by  a 
portion  more  than  one  and  less  than  all.^  When  the  lessor  of 
land  dies  intestate,  the  term  being  unexj)ired,  his  administrator 
is  the  only  proper  party  to  sue  for  the  unpaid  rent  which  accrued 
prior  to  the  death,  while  the  heirs,  either  jointly  or  separately, 
must  sue  for  that  accruing  subsequently  thereto.^  In  actions 
brought  to  recover  damages  for  torts  done  to  the  land,  such  as 
trespasses,  nuisances,  and  the  like,  the  common-law  rule  remains 
unchanged,  and  all  the  owners  in  common  must  unite  as  plain- 
tiffs ;  ^  even  when  they  hold  under  different  titles,  they  must  still 
join,  as,  for  example,  the  heirs-at-law  and  devisees  of  the  same 
land,  in  an  action  for  injuries  done  to  the  inheritance,*  or  the 
owners  in  common  of  a  mill,  who  derive  their  rights  under  differ- 
ent conve3"ances,  in  a  suit  for  the  diversion  of  water  from  their 
mill.°  The  owners  in  common  must  also  join  in  an  action  to 
recover  damages  for  fraud  j^ractised  in  the  sale  of  the  land  to 
them;  a  separate  suit  cannot  be  maintained.^     Administrators  or 


tliese  cases  land  liad  been  leased,  and  the 
lessor  died,  leaving  six  children,  his  only 
heirs.  One  of  them  brings  tliis  action  for 
his  portion  of  the  rent  accruing  after  the 
death  of  his  ancestor,  the  complaint 
setting  forth  all  these  facts.  On  a  de- 
murrer by  the  defendant,  the  New  York 
Superior  Court  held  the  common-law  rule 
to  be  that,  under  such  circumstances,  each 
owner  in  common  might  sue  for  his  por- 
tion, or  all  might  join  in  an  action  for  the 
whole,  and  that  this  rule  had  not  been 
cliangedby  the  code.  Porter  v.  Bleiler  sim- 
ply holds  tliat  owners  in  common  7naij  join. 
1  King  V.  Anderson,  20  Ind.  385. 
Lands  had  been  leased  by  an  owner  who 
died  intestate,  leaving  lieirs  his  children 
and  certain  grandchildren.  This  action 
was  brought  by  a  portion  of  the  lieirs  to 
recover  two  years'  rent,  for  the  first  year 
accruing  before  the  death,  and  for  the 
second  year  accruing  after  the  death.  The 
court  held  that  the  administrator  was  the 
only  proper  person  to  sue  for  the  rent 
which  had  accrued  prior  to  the  death, 
and  the  heirs  for  that  accruing  after  the 
death.  A  portion  of  the  heirs,  however, 
could  not  sue ;  all  should  have  been 
joined  ;  and  as  the  shares  of  the  children 
and  of  the  grandchildren   were  unequal, 


the  complaint  should  have  shown  which 
were  children  and  which  grandchildren, 
and  their  respective  portions  of  the  whole 
rent.  The  case  does  not  hold  that  one 
heir  could  not  maintain  the  action. 

-  King  r.  Anderson,  20  Ind.  385;  Craw- 
ford L\  Gunn,  35  Iowa,  543. 

3  De  Puy  V.  Strong,  37  N.  Y.  372;  3 
Keyes,  603;  Hill  v.  Gibbs,  5  Hill,  56; 
Parke  v.  Kilham,  8  Cal.  77  (diversion  of 
water). 

*  Van  Deusen  u. Young,  29  Barb.  9.  The 
plaintifis  were  some  heirs,  and  the  others 
devisees  of  the  deceased  owner  of  a  farm, 
and  brought  an  action  to  recover  damages 
for  an  injury  to  the  inheritance.  Hoge- 
boom  J.  said  (p.  19)  :  "  They  were  all 
owners,  and  jointly  interested.  The  in- 
jury is  to  their  common  property,  and  the 
damages  to  all.  They  derive  title  from  a 
common  ancestor,  and,  all  togetlier,  rep- 
resent the  estate  which  he  held  in  his  life- 
time, and  for  an  injury  to  which  they  may 
be  regarded  as  his  proper  representatives. 
This  is  one  of  the  cases  where  tenants  in 
common  may  and  ought  to  join." 

5  Samuels  v.  Blanchard,  25  Wise.  329. 

6  Lawrence  v.  Montgomery,  37  Cal. 
183,  188,  per  Crockett  J.  See  Foster  v. 
Elliott,  33  Iowa,  216,  224. 


ACTIONS    BY    OWNERS    OF    LANDS.  261 

executors  cannot  sue  for  trespasses  or  other  injuries  done  to  the 
land  after  the  death  of  the  owner  whom  they  represent ;  the 
heirs  or  the  devisees,  as  the  case  may  be,  are  the  only  proper 
plaintiffs.^ 

§  220.  Owners  in  common  need  not  unite  in  an  action  to  recover 
possession  ;  each  may  bring  a  separate  suit  for  his  undivided 
share .2  This  is  a  very  familiar  rule,  and  such  actions  are  con- 
stantly brought  by  widows  to  recover  their  dower  before  it  has 
been  set  out  to  them  or  admeasured,  and  by  individual  heirs.  Of 
course  all  the  owners  may  join,  and  mii^t  join  if  the  design  is  to 
recover  possession  of  the  entire  tract  over  which  the  common 
ownership  extends,  as  a  separate  parcel  of  land ;  when  one  sues, 
he  can  only  demand  and  obtain  a  judgment  for  his  own  undivided 
portion  of  the  common  premises.  The  election  between  modes 
of  instituting  the  action  goes  no  further,  however ;  it  cannot  be 
prosecuted  by  a  portion  of  the  co-owners  less  than  all,  it  must  be 
by  all  or  by  one.^  In  pursuance  of  this  general  principle,  the 
same  rule  has  been  extended  to  actions  brought  to  recover  a  fund, 
or  a  portion  thereof,  when  by  reason  of  some  judicial  proceed- 
ings this  fund  stands  in  the  place  of  the  land  itself.  Thus,  where 
the  land  of  two  co-owners  had  been  taken  for  public  purposes, 
and  the' amount  awarded  as  compensation  had  not  been  paid  over, 
because  the  owners  were  at  the  time  unknown,  one  of  them  was 
permitted  to  recover  his  portion  of  the  whole  sum  in  a  separate 
action,  the  money  representing  the  land,  and  the  action  itself 
beins:  analogous  to  one  brouQ:ht  to  recover  an  undivided  share  of 


1  Aubuchon  v.  Lory,  23  Mo.  99.  the  rent  is  entire,  and  accruing  to  all  the 

2  Cruger  v.  McLaury,  41  N.  Y.  219.  owners  in  common,  each  may  sue.  See 
One  K.  had  given  a  lease  in  fee  of  lands,  Fisher  v.  Hall,  41  N.Y.416,  in  which  it  may 
reserving  rent,  with  a  clause  of  re-entry  on  seem  to  be  intimated  that  all  must  join  in 
non-payment.  One  of  his  si.x  children  a  suit  to  recover  possession  of  the  land ; 
and  heirs-at-law  sues  to  recover  an  undi-  but  there  is  actually  no  discrepancy  in  the 
vided  sixth  part  of  the  premises,  on  ac-  two  decisions.  In  the  case  last  cited  all  the 
count  of  the  condition  broken.  The  owners  but  one  united  in  a  suit  to  recover 
Court  of  Appeals  held  the  action  properly  possession  of  the  entire  /jarce/ of  land  ;  and 
brought;  that  all  the  heirs  need  not  be  in  such  an  action  a  joinder  of  all  the  own- 
joined  ;  and,  also,  that  each  of  the  heirs  ers  is,  of  course,  necessary.  The  court 
might  have  maintained  an  action  for  the  did  not  intimate  that  one  co-owner  may 
rent.  This  last  proposition  settles  the  not  sue  for  his  undivided  share.  See  also 
doubt  expressed  by  Comstock  J.  in  Mar-  Hasbrouck  v.  Bunce,  3  N.  Y.  Sup.  Ct. 
shall  V.  Moseley,  cited  in  the  note  (2)  to  309,  311. 

§  219,  so  far  as  the  law  of  New  York  is  ^  Fisher  v.  Hall,  41  N.  Y.  416.     See 

concerned;  and,  in  that  State,  although  Hubbell  v.  Lerch,  58  N.  Y.  287,  241. 


262  CIVIL   REMEDIES. 

that  land.^  In  certain  States,  the  subject  now  under  consider- 
ation is  regulated  by  express  statute.  Thus,  in  California,  joint 
owners  and  owners  in  common  may  sue  jointly  or  severally,  or 
any  number  of  them  may  sue,  and  in  like  manner  they  may  be 
sued.2  Under  this  statute,  a  portion  of  the  co-owners  of  a  mine 
were  suffered  to  unite  in  an  action,  and  recover  the  possession  of 
their  shares  from  intruding  wrong-doers.-^  Another  statute  of 
the  same  State  provides  that  any  persons  claiming  lands  under  a 
common  source  of  title  may  unite  in  actions  relating  to  the  title.* 
Prior  to  the  statute  first  mentioned,  joint  owners,^  and,  it  seems, 
owners  in  common,^  were  required  to  join  in  actions  brought  to 
recover  possession  of  lands  so  owned. 

§  221.  II.  Actions  by  joint  oicners  of  chattels.  The  owner- 
ship of  chattels  by  two  or  more  persons  is  quite  different  in  its 
incidents  from  the  similar  ownership  of  lands,  and  it  must  be 
described  rather  than  defined.  It  is  not  a  joint  ownership  in 
the  pure  common-law  signification  of  that  term,  since  it  does  not 
involve  the  right  of  survivorship  ;  there  is  no  survivorship  among 
the  co-owners  of  chattels,  whether  partners  or  not,  and  at  the 
death  of  one,  his  interest  passes  to  his  personal  representatives. 
On  the  other  hand,  this  united  interest  of  the  co-proprietors  is  so 
close  that  it  cannot  be  separated  except  by  mutual  consent.  The 
common  law  provides  no  mode  of  partition.  The  right  of  either 
co-owner  may  be  transferred  by  any  valid  act  inter  vivos.,  and  it 
may  be  devolved  at  his  death  ;  but  it  is  impossible  by  any  legal 
compulsory  means  for  one  to  enforce  a  partition  against  his  fellow- 
owners,  even  when  such  a  division  Avould  be  physically  possible, 
unless  it  be  true,  as  said  in  one  case,  that  such  owner  may  manually 
separate,  and  afterwards  hold  for  his  own  exclusive  use,  when  the 
chattels  themselves  are  capable  of  being  weighed  or  measured, 
so  that  an  accurate  division  can  be  easily  made,  —  as  in  the  case 
of  grain.'     Even  in  the  settlement  of  a  partnership,  the  only 

1  Van  "Wart  v.  Price,  14  Abb.  Pr.    4  wliicli  judjjment  had  been  subsequently 

(note).  reversed   on   appeal.     If  one  of  tlie  co- 

-  See  sitjira,  §  117,  note.  owners  dies,  liis  e.xeeutor  or  administrator 

8  Goller   V.   Fett,   30    Cal.   481.     See  may  be  joined  with  the  other  co-owners 

Touchard   v.   Keyes,  21    Cal.   202.      See  in  California. 

jilso  Reynolds  v.  Hosmer,  4-5  Cal.  616,  631.  *  Laws  of  Cal.,  1867-8,  p.  158,  §  1. 

Tlie  statute  was  held  to  apply  to  an  action  ^  Dewey  v.  Lambier,  7  Cal.  347. 

brought  to  recover  damages,  being  the  ^  Johnson  r.  Sepulbeda,  5  Cal.  149. 

value  of  the  land  which  had  been  sold  on  '  Tripp  v.  Riley,  15  Barb.  333.     It  is 

a  judgment  obtained  by  the  defendant,  said  in  this  case  —  while  conceding  that 


ACTIONS    BY   OWNERS   OF   CHATTELS.  263 

judicial  mode  of  a  final  division  is  a  sale  of  all  the  assets,  and 
their  consequent  conversion  into  money,  which  is  distributed 
among  the  partners.  In  this  respect,  the  ownership  of  chattels 
by  two  or  more  persons  is  more  joint  in  its  nature  than  the  joint 
ownership  of  lands.  From  this  notion  of  tiie  oneiiess  of  the 
interest  residing  in  the  owners  of  things  personal,  it  follows  that 
a  joinder  of  all  in  any  actions  founded  upon  the  property  in  the 
chattels  is  even  more  necessary,  and  is  less  open  to  exception,  than 
in  the  case  of  an  ownership  of  land,  since  one  co-owner  of  a 
chattel  has  no  right  to  its  exclusive  possession  as  against  the 
others,  and  cannot  recover  its  possession  from  them  by  action 
analogous  to  replevin, ^  or  its  value  in  actions  like  trover  or  tres- 
pass ;  and  since  a  direct  judicial  partition  of  the  interests  ig 
unknown,  it  follows  by  the  clearest  logic  that  such  exclusive  pos- 
session, or  such  partition,  cannot  be  permitted  indirectly  by  means 
of  an  action  against  a  third  person  in  the  name  of  one  co-owner, 
the  result  of  which,  if  successful,  would  be  to  give  him  an  exclu- 
sive, or  an  apparently  exclusive,  riglit.  When  the  object  of  the 
property  is  land,  the  interest  of  each  co-owner  is  regarded  as 
separate  for  all  purjjoses  except  possession  ;  and,  in  strict  accord- 
ance with  this  notion,  he  is  permitted  to  sue  alone,  to  recover  his 
uiidivided  part  of  the  land,  or  his  part  of  the  rent  payable  for  the 
use  of  it  ;  but  when  tlie  object  of  the  property  is  a  chattel  or 
chattels,  the  interest  of  all  the  owners  is  conceived  of  as  a  unit 
both  in  respect  to  the  right  of  proprietorship  and  to  the  posses- 
sion, and  a  single  one  cannot  sue  for  his  part  of  the  thing  itself, 
nor  for  his  share  of  the  j)rofits  payable  for  its  use,  or  of  its  value 
if  it  be  taken,  converted,  or  sold,  or  of  the  damages  if  it  be 
injured ;  all  must  join  so  as  to  represent  this  unit)''  of  interest. 
These  general  doctrines,  which  were  fully  settled  in  the  common 
law,  are  unchanged  by  the  new  procedure,  as  will  appear  from 
the  rules  established  by  the  following  cases. 

§  222.  The  part-owners  of  ships  and  other  vessels  are  jointly 

the  common  law  furnished  no  remedy —  l  One  of  two  joint  owners  of  a  chattel 
that  one  co-owner  ma\'  sever  his  share  in  cannot  maintain  an  action  for  the  posses- 
grain  and  otlier  such  articles  wliicii  can  be  sion  tliereof  against  the  other ;  nor  in  such 
weighed  or  measured,  and,  of  course,  may  an  action  can  the  defendant  have  a  judg- 
hold  exclusive  possession  of  the  part  thus  ment  awarding  the  possession  or  a  return 
severed  ;  but  no  authorit}'  is  cited  in  sup-  of  the  chattel  to  him  ;  liis  only  judgment 
port  of  the  proposition  ;  and  the  judge  ad-  is  for  costs.  Cross  v.  Hulett,  53  Mo.  397 ; 
mits  that  he  is  deciding  a  point  for  the  Mills  v.  Malott,  43  Ind.  248,  2-31. 
first  time. 


264  CIVIL   REMEDIES. 

interested,  so  far  as  concerns  the  maintaining  of  actions  touching 
the  property  in  them  or  their  use,  and  must  all  unite  in  such 
actions  ;  as,  for  example  in  a  suit  to  recover  freight,  whether  from 
the  shipper  or  from  a  person  to  whom  it  has  been  paid  by  the 
shipper.^  It  would  seem,  however,  that  a  portion,  one  or  more, 
of  such  owners  may  sue  when  the  residue  refuse  to  join  as  plain- 
tiffs, by  making  such  dissentients  defendants,  and  inserting  appro- 
priate averments  in  the  comj^laint  or  petition  ;  this  course  is 
certainly  proper  if  full  effect  is  to  be  given  to  the  provisions  of  the 
codes  regulating  this  particular  subject,  and  they  are  not  to  be 
restricted  in  their  application  to  equitable  actions.^  Under  pecu- 
liar circumstances,  a  portion  of  the  part-owners  have  been  suf- 
fered to  maintain  an  action  of  a  similar  general  nature  without 
even  making  the  others  defendants,  as  stated  in  the  foot-note.^ 

§  223.  It  is  clearly  the  rule,  established  under  the  new  system 
as  well  as  under  the  old,  that,  properly,  all  the  owners  of  a  chat- 
tel, whether  partners  or  not,  must  join  in  an  action  to  recover 
damages  for  injuries  done  to  it,*  or  for  a  wrongful  taking  or  con- 
version of  it,^  or  to  recover  its  possession.^  This  rule  is  so  firmly 
settled  that  nothing  less  than  an  express  contract  in  reference  to 

1  Merrittw.  Walsh,  32  N.Y.  685;  Don-  the  manner  stated  in  the  text.     If  lam 

nell  V.  Walsh,  33  N.  Y.  43;  6  Bosw.  621.  right  in  the  positions  heretofore  advanced, 

The  first  of  these  cases  was  an  action  by  this  distinction  has  been  abrogated,  and 

certain  part-owners  to  recover  their  sliare  plaintiffs  should  not  he  turned  out  of  court 

of  the  freight  which  had  been  collected  by  because  their  action  is  (so  called)  teffcil, 

the  defendant, — an  agent  for  the  ship,  and  not  r'7)//to6/e,  when  the  facts  are  prop- 

Tiie   complaint   alleged  that  two  of  the  erly  alleged. 

plaintiffs  owned  each  one-sixteenth,  and  ^  Bishop   v.   Edmiston,    16   Abb.    Pr. 

two  of  them  each  one-eighth,  and  the  other  466  (G.  T.).     The  two  plaintiffs  and  one 

part-owners    were   not  joined,    either   as  McL.  owned  a  ship.     It  was  insured  and 

plaintiffs  or  as  defendants.     The   Court  lost,  and  defendant  collected  the  insurance 

of  Appeals  held  that  all  should  have  been  money.     He   had  settled  with  McL.  for 

joined  as  plaintiffs  ;  but  as  the  "  defect "  the  latter's  share,  and  the  plaintiffs  sue 

had  not  been  taken  advantage  of  on  de-  for  their  shares.     The  court  held  that  they 

murrer,  —  it  appearing  on  the  face  of  the  were  tenants  in  common,  and  could  bring 

complaint,  —  the  objection  was   waived,  the  action  without  joining  .the  other  co- 

The   doctrine    stated    in    the    text   was  owner.     This  reason  given  for  the  deci- 

broadly  laid  down,  the  court  saying  that  sion    was    clearly    wrong.     The    decision 

tlie  part-owners  could  not  sue  separately,  would  have  been  in  exact  conformity  with 

being  joint  owners.  the  letter  and  the  spirit  of  the  code   if 

'  Coster  V.  New  York  &  Erie  Kailroad,  McL.  had  been  made  a  defendant,  and  the 

5  Duer,  677  ;  3  Abb.  Pr.  332.     The  action  facts  in  regard  to  liim  had  been  alleged, 

was  for  the  rent  of  a  ship  which  had  been  *  Wells  v.  Cone,  55  Barb.  585;  Hays 

leased.     The  court  said  that  a  legal  action  v.  Crist,  4  Kans.  350. 

could  not  be  maintained  by  a  portion  of  ^  Qock  v.  Keneda,  29  Barb.  120. 

the  part-owners,  but  that  an  fqnitable  one  '^  Bush  v.  Groom,  9  Bush,  675,  678; 

might  be,  under  the  circumstances  and  in  Luke  v.  Marshall,  5  J.  J.  Marsh.  356. 


ACTIONS    BY    OWNERS    OP    CHATTELS.  265 

the  chattel  with  one  of  the  co-owners  in  his  own  name,  by  which 
promises  are  made  directly  to  him,  will  suffice  to  permit  a  sever- 
ance. In  such  a  case,  while  he  may  sue  alone,  in  virtue  of  the 
express  undertaking  to  and  with  him,^  yet  all  the  others  may,  if 
they  so  elect,  join  with  him  in  an  action  on  the  contract ;  for  exam- 
ple a  sale  of  the  chattel  and  a  promise  to  pay  the  price.'^ 

§  224.  The  new  procedure  has  not,  in  general,  changed  the 
former  rules  as  to  the  rights  and  powers  of  surviving  partners  when 
one  or  more  of  the  firm  have  died.  Now,  as  before,  the  surviv- 
ing partner  or  partners  have  the  exclusive  possession  of  the  firm 
assets,  for  the  purpose  of  paying  its  debts  and  settling  its  affairs. 
They  alone  can  prosecute  all  actions  of  a  legal  nature,  to  recover 
debts,  or  the  possession  of  property,  or  its  value,  or  damages  for 
its  wrongful  conversion  or  misuse.  The  remedy  on  all  rights  of 
action  held  by  or  due  to  the  firm,  is  to  be  pursued  in  their 
names,  and  the  personal  representatives  of  the  deceased  member 
or  members  cannot  be  joined  in  such  actions  by  virtue  of  ari}^ 
interest  which  they  may  have  in  the  proceeds,  and  in  the  final 
winding  up  of  the  partnership  accounts.  This  doctrine,  however, 
does  not  mean  that  every  thing  in  action,  belonging  to  the  firm  at 
the  time  of  the  death  of  a  member,  must  invariably  be  enforced 
by  the  survivor,  or  not  at  all ;  he  is  simply  the  proper  and  only 
person  to  sue,  as  long  as  the  thing  in  action  or  other  personal 
property  remains  a  part  of  the  firm  assets.  The  survivor  may 
assign  such  a  firm  asset,  and  the  assignee  would  thereupon  be 
entitled  to  sue  in  his  own  name,  as  in  the  case  of  any  other 
assignment.  When,  therefore,  a  surviving  partner  had  trans- 
ferred a  firm  demand  to  the  administrator  of  the  deceased  partner, 
such  administrator  would  be  alone  able  to  enforce  the  collection 
by  suit  in  his  own  name,  not,  however,  by  virtue  of  his  original 
representative  capacity,  but  only  in  his  character  as  assignee.^ 

§  225.  The  rule  that  all  the  co-owners  of  a  chattel  must  unite 
in  any  action  founded  upon  the  property  in  it,  has  been  pushed 
by  some  of  the  courts  to  its  extreme  limits,  —  to  the  extent,  as  it 

1  Justice  v.  Phillips,  3  Bush.  (Ky.)  200.         ^  Sillinian    v.    Tuttle,   45  Barb.   171. 

An  action  by  one  for  tlie  price  of  cattle  Action  by  ali  the  co-owners  where  a  sale 

sold  by  him  and  in  his  name,  the  promise  had  been  made,  as  in  the  last  preceding 

to  pay  being  made  to  him,  although  he  and  case,  by  one  of  them  alone, 
another  were  the  co-owners;    the  court         '^  Roys  v.  Vilas,  18  Wise.  169;  Brown 

saying  that  both  might  have  sued,  but  that  v.  Allen,  35  Iowa,  306,  311. 
he  could  sue  alone  on  the  express  promise. 


266  CIVIL   REMEDIES. 

seems  to  mo,  in  fact  of  nullifying  an  express  and  very  salutary 
provision  of  the  reform  legislation.  I  have  already  discussed 
the  general  i)rinciple  of  interpretation  referred  to  with  sufficient 
fulness,^  and  shall  simply  state  the  additional  decisions,  without 
furtlicr  comment.  When,  in  the  case  of  partners  or  other  joint 
owners  of  personal  property,  one  of  them  is  legally  disabled,  by 
means  of  some  act  of  his  own,  from  asserting  or  maintaining  any 
right  in  liimself,  or,  in  other  words,  when  he  has  put  himself  in 
such  a  condition  that,  if  he  were  the  sole  owner,  he  would  not 
have  a  right  of  action  in  reference  to  the  propert}',  it  has  been 
held  tliat  all  the  partners  or  co-owners  cannot  prosecute  an  action 
in  their  joint  names,  even  in  respect  of  the  interest  of  those  who 
have  done  no  acts  impairing  their  individual  rights.  It  is  said 
that,  as  the  right  of  action  is  essentially  and  completely  joint, 
and  as  therefore  all  the  co-owners  must  be  able  to  sue,  this  unity 
of  interest  cannot  be  severed  and  a  recovery  permitted  for  that 
share  of  the  interest  which,  as  between  themselves,  belongs  to  the 
innocent  rather  than  to  the  guilty  owners.  Upon  the  same  prin- 
ciple, and  applying  in  the  like  manner  the  rigid  doctrine  of  an  abso- 
lute unity  of  right  among  the  co-owners  of  chattels,  the  one  who  had 
done  no  act  affecting  his  individual  interest  cannot  sue,  in  respect 
of  that  interest,  to  recover  the  jDortion  of  the  entire  demand  due 
to  himself  by  making  the  others  defendants.^     It  is  plain  from 

1  See    supra,   §§    221-223,    and   cases  on  tlie  trial  to  recover  the  value  of  E.'s 

cited.  interest    in    tlie    goods.      The    Supreme 

-  Estabrook  v.  Messersniith,  18  Wise.  Court  of  Wisconsin  reversed  this  ruling, 

545;    Frans   i'.    Young,   24    Iowa,    375;  and   held  that  no  recovery  was  possible, 

Nightingale  v.  Scannell,  6  Cal.  506  ;  and  either  by  both  partners  or  by  either  in  an 

see  Rainey  v.  Smizer,  28  Mo.  310;  Clark  action  at  law,  but  that  E.  could  maintain 

V.  Cable,  21  Mo.  223 ;  Andrews  v.  Moke-  a  suit  in  equity.     See  opinion  of  Dixon 

lumne,  &c.  Co.,  7  Cal.  330      In  the  first  C.  J.,  quoted.s»/)m,  in  note  (1)  to  §  213.    In 

of  these  cases,  Estabrook  and  Bromley,  Frans  v.  Young,  two  persons  were  joint 

partners,  sued  for  tlie  taking  and  conver-  owners  of  a  horse,  and  one  of  them  ple<lged 

sion  of  certain  partnersliip  property.   The  it  to  the  defendant.     The  two  brought  this 

defendant,  a  sheriff,  justified  under  an  at-  action  to  recover  possession,  on  the  ground 

tachment  against   a  certain  debtor,  that  that  the  pledge  was  invalid  against  the 

the  goods  were  his  jjroperty,  and  that  he  two.     Tiie  Supreme  Court  of  Iowa  held 

had   assigned   them  to   the   plaintiffs   in  that  the   two,   suing  jointly,   could    not 

fraud  of  liis  creditors,  &c.     On  the  trial  maintain  the  action,  because  one  of  them 

the   fraud   was  prcjved  against   the   said  was   estopped   by  his    own  act,  and  the 

judgment  debtor,  and   against  Bromley,  non-pledging  owner  could  not  prosecute 

one  of  the  plaintiffs  ;   but  Estabrook,  the  an  action  in  his  own  name,  because  both 

other  plaintiff,  was  ignorant  of  the  fraud,  co-owners  must  join  in  such  a  suit :  citing 

and  paid  full  value,  and  was  a  bona  Jide  Russell  v.  Allen,  13  N.  Y.  173  ;  Tripp  v. 

owner  of  the  goods  jointly  with  B.,  and  as  Riley,  15  Barb.  333.     The  decisions  cited 

his  partner.     The  plaintiffs  were  allowed  from  the  Missouri  Reports  are  very  em- 


JOINT    ACTIONS    ON    CONTRACT.  267 

the  propositions  contained  in  this  subdivision,  and  from  the  cases 
cited  in  their  support,  that  the  courts  have  made  no  sul)stantial 
changes,  as  results  of  the  reformatory  legislation,  in  the  rules 
concerning  the  parties  plaintiff  in  actions  by  the  co-owners  of 

personal  property. 

§  22(3.  III.  Actions  by  persons  having  joint  rights  arising  from 
contract.  The  general  effect  of  the  provisions  contained  in  the 
codes  upon  the  common-law  doctrines  respecting  joint  rights  of 
action,  has  already  been  discussed  with  sufficient  fulness,  and  I 
shall  simply  add  to  that  discussion  some  examples  and  illustra- 
tions furnished  by  the  decided  cases.  It  was  sliown  that  the 
ancient  rule,  requiring  all  the  joint  obligees,  covenantees,  and 
promisees  to  unite  in  actions  brought  upon  their  contracts,  had 
not  been  abrogated,  and  only  modified  perhaps  in  the  single  par- 
ticular of  permitting  parties  to  be  made  defendants  who  refuse  to 
join  as  plaintiffs.  The  doctrine  of  equity  in  this  respect  was 
substantially  the  same  as  that  of  the  law,  and  demanded  a  union 
of  all  joint  claimants  to  prosecute  their  joint  right  by  a  suit  in 
chancery.  When  the  doctrine  of  equity  was  made  statutory,  and 
was  applied  to  all  classes  of  actions,  it  therefore  wrought  no 
change  in  the  practical  rules.  Of  course  these  provisions  of  the 
codes  as  to  parties  have  not  of  themselves  altered  in  any  manner 
the  principles  which  the  common  law  had  established  for  deter- 
mining whether  a  right  created  by  any  contract  is  joint  or  several. 
In  actions  ex  contractu,  all  the  persons  having  a  joint  interest 
must  be  made  plaintiffs,  and,  when  one  of  them  dies,  the  action 
must  be  brought  or  must  proceed  in  the  names  of  the  survivors ; 
the  personal  representatives  of  the  deceased  obligee  or  promisee 
cannot  be  joined  as  coplaintiffs ;    and  in  the  same  manner,  in 

pliatic  in  their  statement  of  the  same  doc-  multiplicity  of  suits."     The   correctness 

trine,  and  strongly  repudiate  the  notion  of  all  these  decisions  must  evidently  de- 

of  one  co-owner  bringing  an  action,  and  pend  upon  the  interpretation  to  he  finally 

making  his  fellow-owner  a  defendant.    In  given  to  the  provisions  of  the  codes  under 

Nightingale   v.    Scannell,    the    Supreme  review.      Do  they   apply   the   equitable 

Court  of  California,  while  expressly  re-  doctrine  which  they  embody  to  all  actions 

fusing  to  decide  whether  an  action  could  alike  ?  and  are  they  to  he  thus  accepted 

be  brought  in  such  a  manner  by  one  joint  according  to  their  plain  import  ?     Or,  are 

owner,  said  that,  if  so,  the  plaintiff  must  exceptions  to  be  interpolated  which  will 

recover  for   the   entire  cause  of  action,  confine  their  operation  to  equitable  suits 

"The  law  will  not  tolerate  the  division  alone"?     When    this    question    is    finally 

of  a  joint   right   of  action   into   several  settled  by  the  courts,  a  uniformity  in  the 

actions ;  the  whole  cause  of  action  must  procedure   will,   of  course,  result.      See 

be  determined  in  one,  and  tlius  avoid  a  Hill  v.  Marsh,  46  Ind.  218. 


208  CIVIL    REMEDIES. 

actions  ex  delicto  for  injuries  to  personal  property,  all  the  joint 
owners  must  unite,  and,  if  one  of  them  dies,  the  action  is  to  be 
prosecuted  by  the  survivors  alone.  These  common-law  rules 
remain  in  full  force. ^  It  has  been  held  that  two  or  more  obligees 
in  an  injunction  undertaking,  although  their  interests  were  entirely 
separate,  and  no  joint  claim  for  damages  existed,  may  unite  in  an 
action  upon  it;^  but  in  another  similar  case,  where  the  action 
was  joint  in  form,  the  recovery  was  limited  to  the  damages 
suffered  by  the  plaintiffs  jointly,  and  they  were  not  permitted  to 
show  what  each  had  separately  sustained.^  In  an  action  on  a 
penal  bond  running  to  several  persons  jointly,  the  common-law 
rule  required  all  the  obligees  to  be  made  plaintiffs,  although  the 
condition  was  to  perform  distinct  acts  for  the  benefit  of  the 
obligees  severally."^  When  a  deed  of  conveyance  of  land  is  given 
to  two  or  more  grantees,  the  implied  covenants  of  title,  if  there 
be  any,  are  joint,  and  give  only  a  joint  right  of  action,  so  that 
one  of  the  OTantees  cannot  sue  alone  for  a  breach.^  This  is  a 
reaffirmance  of  the  rule  applicable  to  the  same  circumstances 
under  the  common  law. 

§  227.  It  has  been  said,  in  a  decision  made  since  the  code,  that 
in  an  action,  whether  legal  or  equitable,  by  a  firm,  all  the  part- 

1  Bucknam  v.  Brett,  35  Barb.  596;  13  referred  to  in  a  preceding  paragraph,  all 
Abb.  Pr.  119;  Daby  y.  Ericsson,  45  N.  Y.  these  occupants  were  made  defendants. 
786.  The  survivor  was  held  to  be  the  An  injunction  was  granted  restraining 
proper  party  to  sue,  although,  by  an  ar-  them  all  from  interfering,  &c.,  with  the 
rangement  between  himself  and  the  rep-  crops,  and  the  ordinary  undertaking  was 
resentatives  of  the  estate  of  tlie  deceased,  given  to  them.  The  persons  thus  enjoined 
the  proceeds  were  to  belong  exclusively  bring  this  action  on  the  undertaking  ;  and 
to  them,  and  he  disclaimed  all  interest  the  rule  stated  in  the  text  was  expressly 
therein.  See  also  Carrere  v.  SpofFord,  15  laid  down  by  the  court.  It  would  be  dif- 
Abb.  Pr.  N.  s.  47,  48,  49.  ficult  to  reconcile  these  two  cases. 

2  Loomis  V.  Brown,  16  Barb.  325.  See  *  Pearce  v.  Hitchcock,  2  N.  Y.  388,  per 
opinion  of  Gridley  J.,  quoted  supra,  §  202.  Jewett  C.  J.  See,  however,  Alexander 
The  decision  was  not  placed  upon  the  v.  Jacoby,  23  Ohio  St.  358,  383.  An  at- 
ground  that  the  plaintiffs'  rights  were  tachment  bond  had  been  given,  joint  in 
joint.  It  was  considered  that  the  code  form,  to  A.,  B.,  and  C,  and  goods  belong- 
permitted  a  union  of  plaintiffs  in  legal  ing  to  A.  and  B.  had  been  seized.  The 
actions,  which  was  not  possible  at  the  suit  terminating  in  their  favor,  they 
common  law.  brought  an  action  on  the  bond,  without 

3  Fowler  v.  Frisbie,  37  Cal.  34.  A  joining  C.  as  a  coplaintiff.  It  was  held 
number  of  persons  were  in  possession  of  that,  though  in  form  joint,  the  interests  of 
land,  not  jointly,  nor  in  common,  but  the  obligees  were  several ;  and  the  action 
each  possessing  and  cultivating  a  separate  by  A.  and  B.  was  sustained. 

parcel   of   the    whole.     An    action    was         ^  Lawrence  v.  Montgomery,    37   Cal. 
brought  to  recover  the  entire  tract,  and,     183. 
by  the  provisions  of  the  California  statute 


JOINT    ACTIONS    ON    CONTRACT.  269 

ners,  even  thofie  that  are  dormant,  must  unite  as  plaintiffs ;  ^  l)ut 
this  case  can  hardly  be  regarded  as  correct,  for  it  was  well  settled 
at  the  common  law  that  dormant  partners  need  not  he  joined, 
and  it  does  not  seem  that  any  thing  in  the  code  has  changed  the 
rule  in  this  particular.  When  eleven  officers  [harbor  masters] 
all  engaged  in  the  same  duties,  and  each  entitled  to  an  equal 
share,  one-eleventh,  of  tlie  total  fees,  made  an  agreement  b}-  which 
one  of  them  undertook  to  collect  all  the  fees,  and  to  account 
for  and  pay  over  to  the  other  ten  their  portions  of  the  same,  it 
was  held  that  all  of  the  ten  must  unite  in  an  action  brought 
against  the  eleventh  to  recover  from  him  the  amounts  due  to 
them  which  he  had  received;  one  could  not  sue  alone.^  Persons 
may  sometimes  be  united  as  plaintiffs  in  an  action  upon  a  written 
contract,  even  though  they  are  not  parties  thereto,  and  the  terms 
of  the  agreement  make  no  direct  reference  to  them,  if  they,  not- 
withstanding, have  an  actual  interest  jointly  with  the  ostensible 
parties  in  the  subject-matter  of  the  contract,  and  in  the  cause  of 
action  arising  upon  it.^  The  authorities  of  a  county  appropriated 
$117,600  to  procure  volunteers  to  fill  the  quota  of  the  county, 
and  ordered  t$300  to  be  paid  as  bounty  to  each  volunteer  out  of 
this  fund.  Eighty-six  persons,  who  had  already  enlisted  in  the 
military  service,  agreed  with  the  county  officials  that,  in  consider- 
ation of  being  paid  said  bounty,  they  would  form  a  part  of  its 
quota,  and  they  were  thereupon  actually  enrolled  in  and  credited 
to  the  number  of  volunteers  required  from  the  county.  The 
bounty  not  being  paid,  the  entire  eighty-six  united  in  an  action 
demanding  judgment  for  the  total  amount  of  their  bounties, 
$25,800,  and  the  action  was  held  to  be  proj^erly  brought.^ 

1  Secor  V.  Keller,  4  Duer,  416.     Un-  "  Dean   v.   Cliamberlin,  6  Duer,  691. 

doubtedly,  the  dormant  partners  are  in-  The   complaint,  stating  these  facts,  and 

terested  in  the  event  of  the  action  ;  but  alleging  that  defendant  had  refused  to  ac- 

they  were  equally  so  at  the  common  law.  count  for  and  pay  over  to  tiie  single  plain- 

They  were  not  required  to  be  made  par-  tiff  his  share,  was  held  bad  on  demurrer; 

ties  by  the  former  rule,  because  the  con-  all  should  have  joined  as  plaintiffs. 

tract    was   regarded   as   being   e.xpressly  ^  Kutledge  v.  Corbin,  10  Ohio  St.  478. 

made   with   the   ostensible  partners,    who  A  "  forthcoming  bond  "iiaving  been  given 

acted  as  agents  for    the   dormant   ones,  to  the  sheriff  for  the  benefit  of  certain 

They  seem,  therefore,  to  fall  within  the  attaching   creditors   named   in   it   as  the 

provision    which    allows    actions    to    be  parties   benefited,   subsequent    attaching 

brought  by  persons  in  whose  name  a  con-  creditors  were  permitted  to  unite  in  the 

tract  is  made  for  the  benefit  of  another,  action  on  the  bond  jointly  with  those  first 

See  Beudell  u.  Hettrick,  45  How.  Pr.  198;  mentioned.     See  the  facts  and  opinion, 

Lewis  V.  Greider,  51  N.  Y.  231;  49  Barb,  supra,  §  202. 

606.  *  Young  v.  Board  of  Commissioners, 


270  CIVIL  REMEDIES. 

§  228.  The  common-law  theory  of  joint  right,  growing  out  of 
contract,  equally  with  the  joint  right  arising  from  the  ownership 
of  chattels,  has  been  carried  by  certain  cases  so  far  that  manifest 
injustice  has  been  clone,  and  the  enforcement  of  conceded  rights 
has  been  defeated,  in  order  that  the  courts  should  not  depart 
from  an  arbitrary  and  technical  rule.  These  cases  have  held 
that,  where  a  contract  is  made  by  or  with  two  or  more  on  the  one 
part,  so  that  a  joint  right  of  action  is  held  by  them,  the  oidy 
possible  action  is  one  brought  by  all,  if  living ;  that  one  of  them 
cannot  sue  on  the  contract  making  his  co-contractor  a  defendant, 
with  proper  averments  in  the  jDleading,  whether  he  seeks  to 
recover  the  whole  amount  due,  or  only  his  own  individual  interest 
therein,  and  though  the  co-contractor  refuses  to  join  in  the  suit 
for  any  reason,  even  if  the  latter  has  been  paid  his  share. ^  I 
have  already  discussed  this  topic  at  large,  and  fully  expressed 
my  opinion  upon  it.^  The  decisions  last  mentioned,  and  the  rule 
which  they  apj)rove,  are  directly  opposed  to  the  letter  of  the 
codes,  which  makes  no  restriction  to  equitable  suits,  and  are 
in  violent  antagonism  with  the  evident  intent  of  the  reformed 
procedure.  It  was  said  by  the  court,  in  one  case,  that  if  an 
action  by  one  of  the  creditors  was  permitted,  under  the  circum- 
stances stated,  the  debtor  would  be  exposed  to  subsequent  suits 
and  recoveries  from  the  other  creditors.  This  remark  shows  an 
entire  misapprehension  of  the  meaning  and  purpose  of  the  statutory 

25  Ind.  295,299.  Each  plaintiff  was  only  own  claims,  to  renounce  those  of  his  co- 
interested  to  the  extent  of  §300.  There  contractor.  It  may  be  the  judge's  ques- 
was  no  joint  right  in  the- whole  fund,  tion  is  a  reason  for  not  permitting  one  to 
This  case,  therefore,  illustrates,  in  a  clear  bring  an  action  in  bol/t  names  against  the 
manner,  the  proposition  heretofore  made,  consent  of  the  other  ;  but  this  is  the  very 
—  that  the  code  admits  of  a  joinder  of  reason  why  he  should  be  allowed  to  bring 
plaiiitijfs  in  instances  where  such  joinder  the  action  in  his  own  name,  and  to  save  the 
was  not  permitted  at  the  common  law.  riijlils  of  the  dffendunt  by  making  the  dis- 
1  Rainey  v.  Smizer,  28  iMo.  310;  Clark  sentient  creditor  a  codefendant,  and  thus 
r.  Cable.  21  Mo.  223  ;  Andrews  ?n  Moke-  condudhxj  him  by  tlie  judgment.  In  Kansas  a 
lumne  Hill  Co.,  7  Cal.  330.  In  the  first  more  liberal  view  has  been  taken  of  the 
of  the  cases,  the  learned  judge,  in  giving  statute.  When  one  of  two  partners  had 
his  reasons  why  such  an  action  cannot  be  transferred  certain  firm  property  without 
maintained  by  one  joint  creditor,  even  rightful  authority,  as  was  claimed,  the 
though  the  other  refuse  to  prosecute,  other  copartner  was  permitted  to  main- 
said:  "If  one  will  say  that  he  has  no  tain  an  action  in  his  own  name  against 
rigiit  of  action,  and  will  not  sue,  why  the  transferee,  to  recover  the  value  of  his 
should  he  not  have  as  much  weight  as  own  interest  in  the  property.  Hogen- 
the  other  who  says  there  is  a  cause  of  dobler  v.  Lyon,  12  Kans.  276. 
action?"  The  answer  is  very  sun  pie  :  ^  See  sh/'w,  §  204,  and  notes,  and  Hill 
because  he  has  no  right,  in  renouncing  his  v.  Marsh,  46  Ind.  218. 


SEVERAL    ACTIONS    ON    CONTRACT.  271 

provision.  It  requires  the  dissenting  creditor  or  co-contractor, 
who  refuses  to  be  a  plaintiff,  to  be  made  a  defendant,  for  the 
very  purpose  of  concluding  him,  b}^  the  judgment,  from  an}^  sub- 
sequent prosecution  on  his  own  behalf.  He  is  added  as  a  party, 
and  "'has  his  day  in  court,"  and  this  will  be  a  complete  bar  to  a 
future  attempt  on  his  own  part,  if  he  should  change  his  mind. 
No  possible  injustice  could  therefore  be  done  to  the  defendant,  and 
great  injustice  would  necessarily  be  done  to  the  creditor  who 
desires  to  enforce  his  lawful  demand,  if  the  utterly  arbitrary  rule 
sustained  by  these  and  similar  cases  should  be  generally  approved 
as  the  correct  interpretation  of  the  codes.  The  New  York  Court 
of  Appeals  has  determined  that  an  action  may  be  maintained  by 
one  firm  against  another  firm  to  recover  a  sum  ascertained  to  be 
due,  although  the  two  partnerships  have  a  common  member  who 
is  made  a  defendant,  with  proper  averments,  in  the  complaint; 
and  the  action  need  not  be  brought  for  the  equitable  relief  of  an 
accounting,  but  for  the  legal  relief  of  an  ordinary  money  judg- 
ment.^ 

§  229.  IV.  Actions  hy  jyersons  having  several  rights  arising 
from  contract.  As  the  principles  have  been  already  stated  in 
the  preliminary  discussions  of  this  section,  it  is  only  necessary  to 
add  some  further  illustrations  furnished  by  the  decided  cases. 
The  common-law  doctrine  in  respect  to  several  rights  and  actions 
does  not  seem  to  have  been  changed,  unless,  possibly,  under  the 
operation  of  the  equitable  rule  embodied  in  the  codes,  plaintiffs 
having  strictly  several  rights  may  be  allowed  to  unite  in  legal 
actions,  under  circumstances  which  establish  a  certain  com- 
munity of  interest  among  them,  although  under  the  same  cir- 
cumstances they  would  have  had  no  such  election  at  the  common 
law.  There  is  at  least  a  tendency  shown  by  some  of  the  de- 
cisions towards  such  a  modification  of  the  rule  which  formerly 
prevailed  in  reference  to  several  rights  and  causes  of  action. 
The  following  examples  will  serve  to  illustrate  the  nature  of 
several  rights,  and  the  doctrine  as  to  parties  plaintiff  in  suits 
brought  to  enforce  them.  Tenants  in  common  of  a  tract  of  land, 
who  hold  their  titles  by  different  conveyances  from  the  same 

1  Cole  V.  Reynolds,  18  N.  Y.  74.     The  ancient  rule  as  to  joint  causes  of  action, 

fundamental  principle  involved  in  this  de-  should  be  a  plaintiflf",  is  permitted  to  be  a 

cision  is  the  same  as  that  advocated  in  the  defendant.      I   simply  contend  that  this 

text.     A  party  who,  in  pursuance  of  the  principle  should  be  regarded  as  general. 


272  CIVIL   REMEDIES. 

grantor,  each  of  which  contains  covenants  reLiting  to  the  land, 
and  its  use,  cannot  unite  in  an  action  brought  against  the 
grantor  to  recover  damages  for  the  breach  of  such  covenants  ; 
their  interests  under  the  covenants  and  their  rights  of  action  are 
in  every  sense  severaL^  The  obHgees  in  an  injunction  bond, 
where  the  interests  interfered  with  by  the  injunction  are  separate, 
and  the  injur}'  done  to  each  is  distinct,  cannot  join  in  a  suit  to 
recover  damages  for  these  several  causes  of  action ;  their  recovery 
in  such  proceeding  must  be  limited  to  the  damages  that  are 
strictly  joint.^  Certain  persons  executed  the  following  written 
agreement:  "We,  the  undersigned,  agree  to  guarantee  the  de- 
positors of  W.  E.  C.  [a  banker]  in  the  paj^ment  in  full  of  their 
demands  against  said  W.  E.  C.  on  account  of  money  deposited 
with  him."  Each  depositor,  it  was  held,  must  sue  separately 
uj)on  this  guaranty  to  recover  the  amount  of  his  individual  claim ; 
all  the  depositors  could  not  join  in  a  single  action,  because  their 
interests  were  entirely  several,  neither  one  having  any  interest  in 
the  demand  of  another.^  A  number  of  jiersons  having  each 
subscribed  different  sums  of  money  for  a  loan  to  a  certain 
jDarty  in  aid  of  a  proposed  enterprise,  and  a  committee  of  three 
having  been  appointed  to  act  as  agents  for  the  subscribers,  which 
committee  entered  into  a  written  contract  with  him  containing 
various  stipulations  concerning  the  use  of  the  money,  and  also  an 
undertaking  on  his  part  to  repay  the  amounts  advanced,  each  of 
the  subscribers  was  held  entitled  to  maintain  a  separate  action 
against  the  borrower  to  recover  the  sum  loaned  by  himself.* 
Five  persons  entered  into  a  written  agreement  stipulating  that,  if 
either  or  any  of  them  should  be  drafted  during  the  late  w\ar,  the 
others  would  contribute  equal  sums  to  enable  him  or  them  to 
hire  substitutes.  Three  of  the  parties  having  been  drafted  and 
procured  substitutes,  one  at  a  cost  of  81,500,  and  the  others  for 

1  Samuels  v.  Blanchard,  25  Wise.  329.     tained.     Alexander  v.  Jacoby,   23   Ohio 

2  Fowler  v.  Frisbie,  37  Cal.  34 ;  but,     St.  358,  383. 

per  contra,  see  Loomis  v.  Brown,  16  Barb.  ^  gteadman  v.  Guthrie,  4  Mete.  (Ky.) 

325.    It  is  held  in  Ohio  that  the  interests  147,  151. 

of  the  obligees  in  an  attachment  bond  are         *  Rice  v.  Savery,  22  Iowa,  470.     The 

several,  although  the  undertaking  is  in  court  held  that  the  committee  might  also 

terms  joint.     Where   such   a  bond   was  sue  as  trustees  of  an  express  trust,  the 

given  to  three  persons,  an  action  on  it  by  promise   having   been   made  directly   to 

two   of  them,    who  were    partners,   and  them,  and  also  that  each  creditor  could 

whose  firm  property  had  been  wrongfully  sue. 
seized  under   the   attachment,  was   sus- 


SEVERAL   ACTIONS    ON   CONTRACT. 


273 


illOO  each,  it  was  held  by  tlie  Supreme  Court  of  Indiana  that 
each  must  sue  the  others  in  a  separate  action  for  the  stipulated 
indemnity,  and  a  joint  action  by  the  three  was  dismissed. ^  A 
number  of  persons  being  interested  in  opposing  a  certain  claim 
and  in  defending  suits  thereon,  appointed  a  committee  to  employ 
counsel  and  to  conduct  the  defence,  and  agreed  to  pay  the  ex- 
penses incurred  by  such  committee.  The  cost  of  the  defence  not 
having  been  contributed, the  committee  paid  the  same,  and  thereby 
became  entitled  to  reimbursement.  This  right,  it  was  held,  was 
a  several  one  in  each  member  thereof,  and  a  separate  suit  by  each 
to  recover  the  sum  paid  out  by  himself  was  proper  rather  than  a 
joint  action  by  all  to  recover  the  whole  amount  which  had  been 
disbursed.^  Under  the  general  statutes  of  New  York,  providing 
for  the  formation  of  corporations  for  various  purposes,  and  mak- 
ing the  stockholders  personally  liable  under  certain  circumstances 
to  the  creditors  of  the  corporation  for  the  debts  thereof,  this  right 
of  action  in  the  creditors  is  a  several  one,  and  a  separate  action 
may  therefore  be  maintained  by  each  creditor.     It  is  admitted, 


1  Goodnight  v.  Gear,  30  Ind.  418.  As 
the  analysis  of  this  contract,  given  in  the 
opinion  of  the  court,  may  he  instructive 
in  explaining  the  nature  of  several  rights, 
I  quote  from  it  at  some  length.  After 
stating  that  the  code  adopts  the  equity 
doctrine  as  to  parties,  and  applies  it  to  all 
actions,  Frazer  J.  proceeds  :  "  The  pres- 
ent inquir}'  is  reduced  to  this  :  Could 
these  plaintiffs  have  been  joined  in 
chancery  ?  In  solving  this  question,  we 
may  be  aided  by  considering  the  nature 
of  the  contract  upon  which  the  action  is 
brought.  Tiie  obligations  which  it  im- 
poses are  strictly  several,  each  party  for 
himself  alone  being  bound  in  a  certain 
event  to  pay.  The  obligation  thus  as- 
sumed is  to  each  one  of  the  plaintiffs 
separately  by  each  defendant  for  one-fifth 
of  such  sum  as  that  plaintiff  was  obliged 
to  pay  for  a  substitute  for  himself.  This 
proportion  due  from  one  cannot  be  either 
increased  or  diminished  by  the  fact  that 
another  plaintiff  is  also  entitled  to  recover 
from  the  same  defendant  a  like  propor- 
tion of  the  sum  paid  by  him  for  a  substi- 
tute. Each  plaintiff  luis  an  interest  only 
in  compelling  the  defendants  severally  to 
reimburse  him,  and  cannot  possibly  be 
affected  by  the  success  or  failure  of  any 


one  of  his  coplaintiffs  in  the  suit.  They 
have,  therefore,  no  joint  or  common  inter- 
est in  the  relief  sought,  which  is  the  object 
of  the  suit.  Nor  have  tliey  any  joint  or 
common  interest  in  the  subject  or  founda- 
tion of  the  action,  which  is  the  failure  of 
the  defendants  respectively  to  pay  accord- 
ing to  the  contract.  Tiie  failure  to  pay 
Goodnight  does  not  concern  any  other 
plaintiff;  and  so  the  failure  to  pay  each 
of  the  plaintiffs  is  a  matter  of  entire  in- 
difference to  the  otliers.  If  each  two  of 
the  five  persons  had  mutually  contracted, 
by  a  separate  writing,  to  pay  one-fifth  of 
whatever  sum  might  be  necessary  to  pro- 
cure a  substitute  for  either  if  drafted,  there 
would  have  been  twenty  separate  paper 
contracts  instead  of  one  as  now.  It  was 
a  matter  of  convenience  merely  tliat  one 
writing,  executed  by  all,  should  have 
been  adopted  to  evidence  their  several 
undertakings  ;  but  it  imposed  exactly  the 
same  liabilities  as  if  twenty  writings  such 
as  we  have  mentioned  had  been  used.  In 
the  latter  case  it  would  have  been  too 
plain  for  doubt  that  each  plaintiff  must 
sue  separately.  Why  should  it  be  other- 
wise now  ?  There  is  certainly  no  good 
reason." 

2  Finney  v.  Brant,  19  Mo.  42. 


18 


274  CIVIL    REMEDIES. 

however,  that  a  proper  action  ma}^  be  brought  against  all  the 
stockholders  for  the  benefit  of  all  the  creditors.^  A  bond  having 
been  given  for  the  payment  of  a  certain  sum  to  the  heirs  of  -A., 
eight  in  number,  upon  the  death  of  their  mother,  it  was  held  by 
the  Supreme  Court  in  New  York,  that  an  action  might  be  main- 
tained by  one  heir  against  the  obligor,  or,  he  being  dead,  against 
his  administrator,  to  recover  one-eighth  of  the  entire  sum  ;  that 
the  right  of  the  obligees  was  several  and  not  joint.^  Where  three 
towns  were  each  liable  for  a  share  of  the  cost  of  erecting  a  bridge, 
and  the  proper  officers  of  each  —  the  highway  commissioners  — 
procured  the  same  to  be  erected,  but  the  entire  expense  thereof 
was  actually  advanced  and  paid  out  by  two  of  these  commis- 
sioners, their  right  of  action  against  the  third  commissioner  to 
recover  the  amount  thus  disbursed  for  his  use  was  declared  to  be 
several,  and  a  joint  action  against  him,  it  was  held,  could  not  be 
maintained.^ 

§  230.  V.  Actions  hy  persons  having  a  joint  right  arising  from 
personal  torts.  The  common-law  rule  governing  the  selection  of 
parties  plaintiff  in  such  actions  is  entirely  unchanged.  When 
the  personal  tort  produces  a  common  injury  to  all,  and  thus 
creates  a  common  damage,  all  the  persons  affected  by  the  wrong 
must  join  in  an  action  to  recover  the  damages.  In  pursuance 
of  this  principle,  all  the  members  of  a  partnership  may  and  must 
unite  in  an  action  for  a  libel  or  slander  on  the  firm  b}'  which  its 
business  is  injured.  Undoubtedly,  the  instances  in  which  a  com- 
mon as  distinguished  from  a  several  injury  can  be  done  to  a 
number  of  individuals  by  personal  torts,  must  necessarily  be 
rare  ;  but  when  they  do  occur,  the  rule  as  stated  must  be  applied. 
A  single  illustration  will  suffice.  False  and  fraudulent  represen- 
tations concerning  the  pecuniar}^  responsibility  of  a  certain  per- 
son having  been  made  to  a  partnership,  by  which  it  was  induced 
to  sell  goods  to  him  on  credit,  and  the  price  of  the  goods  not 
being  paid  or  recoverable  by  reason  of  the  purchaser's  insolvency, 

1  Weeks  r.  Love,  50  N.  Y.  568.     It  was  ^  Corey  t;.  Rice,  4  Lans.  141.     Tliere 

said  tliat  all  the  cases  impliedly  hold  the  was  no  joint  or  common  interest  held  hy 

doctrine  above  stated  ;  and  tlie  following  the  towns  which  the  plaintiffs  represented 

were  cited  :  Brigys  v.  Penninian,  8  Cow.  in  the  sum  which  was  thus  advanced ;  it 

387  ;  Mann  v.  Pentz,  3  N.  Y.  415  ;  Osgood  was  not  like  an  advance  made  by  a  part- 

V.  Lay  tin,  5  Abb.  Pr.  n.  s.  1;  Garrison  v.  nership,  or  made  out  of  a  tund  owned  by 

Howe,  17  N.  Y.  458.  the  plaintiffs  together.   The  implied  prom- 

-  Hees   V.   Kellis,    1    N.  Y.   Sup.   Ct.  ise  of  the  defendant  was,  therefore,  not 

118.  to  the  plaintiffs  jointly. 


ACTIONS    ARISING    FROM    PERSONAL    TORTS.  275 

it  was  decided  by  the  New  York  Court  of  Appeals,  that  an  action 
to  recover  damages  for  the  deceit  should  be  brought  by  all  the 
partners  jointly.^ 

§  231.  VI.  Actions  hy  persons  liaviny  several  rights  arising  from 
personal  torts.  The  converse  of  the  proposition  stated  in  the 
preceding  paragraph  is  also  as  true  now  as  it  was  prior  to  the 
new  system  of  procedure.  Where  a  personal  tort  has  been  done 
to  a  number  of  individuals,  but  no  joint  injury  has  been  suffered 
and  no  joint  damages  sustained  in  consequence  thereof,  the 
interest  and  right  are  necessarily  several,  and  each  of  the  injured 
parties  must  maintain  a  separate  action  for  his  own  personal 
redress.  It  follows,  therefore,  that  when  a  tort  of  a  personal 
nature,  an  assault  and  battery,  a  false  imprisonment,  a  libel,  a 
slander,  a  malicious  prosecution,  and  the  like,  is  committed  upon 
two  or  more,  the  right  of  action  must,  except  in  a  very  few 
special  cases,  be  several.  In  order  that  a  joint  action  may  be 
possible,  there  must  be  some  prior  bond  of  legal  union  between 
the  persons  injured  —  such  as  a  partnership  relation  —  of  such  a 
nature  that  the  tort  interferes  with  it,  and  bg  virtue  of  that  very 
interference  produces  a  wrong  and  consequent  damage  common 
to  all.  It  is  not  every  prior  existing  legal  relation  between  the 
parties  that  will  impress  a  joint  character  upon  the  injury  and 
damage.  Thus,  if  a  husband  and  wife  be  libelled  or  slandered, 
or  beaten,  although  there  is  a  close  legal  relation  between  the 
parties,  it  is  not  one  which  can  be  affected  by  such  a  wrong,  and 
no  joint  cause  of  action  will  arise.  The  doctrine  above  stated 
has  been  fully  recognized  and  asserted  by  the  courts  since  the 
codes  were  enacted.  A  fire  company  —  a  voluntary  association  — 
having  been  libelled,  a  joint  action  by  its  members  to  recover 
damages  against  the  libeller  was  held  improper ;  not  being  part- 
ners, and  not  having  any  community  of  legal  interest  whereby 
they  could  suffer  a  common  wrong,  the  right  of  action  Avas  ^ 
several,  and  each  must  sue  alone.^  The  same  rule  has  been 
applied  in  the  case  of  tAvo  or  more  persons,  not  partners,  suing 

1  Zabriskie   v.   Smith,   13  N.  Y.  322.  mitigation  of  damages ;  although,  if  tlie 

The  action  was  actually  brought  by  three  plaintiffs  had  been  entitled  as  owners  in 

out  of  four  partners;   but,  no  objection  com/«oH,  such  a  mitigation  of  damages,  and 

being   properly    taken,    the   defect    was  deduction  from  the  recovery,  would  have 

waived.     The  court  further  held  that,  as  been  proper  and  necessary, 
the  right  of  action  was  /on//,  the  share  of         2  Giraud  v.  Beach,  3  E.  D.  Smith,  337  ; 

the  partner  not  made  plaintiff  could  not  be  Hinkle  y.  Davenport,  38  Iowa,  355,  358 ; 

shown  by  the  defendant,  and  allowed  in  Stepank  v.  Kula,  36  ib.  563. 


276  .  CIVIL   REMEDIES. 

jointly  to   recover   damages    for   a   malicious   prosecution  ;    the 
action  cannot  be  maintained.^ 

§  232.  VII.  Actions  in  special  cases.  Some  special  cases  which 
do  not  fall  within  the  foregoing  classification  will  conclude  this 
branch  of  the  discussion.  A  policy  of  fire  insurance,  containing 
the  clause,  "  loss  if  any  payable  to  E.  B.  G.,  mortgagee,"  the 
assured,  it  was  held,  could  not  maintain  an  action  without  mak- 
ing E.  B.  G.  a  coplaintiff,  unless  it  was  alleged  and  jDroved  that 
the  mortgage  to  him  had  l)een  paid  off  so  that  his  interest  had 
ended.2  j^  several  of  the  States,  by  virtue  of  special  provisions 
contained  in  their  codes,  partnerships  may  sue  and  be  sued  by 
the  use  of  the  firm  name  as  the  parties  plaintiff  or  defendant, 
in  the  same  manner  as  though  they  Avere  corporations.  The 
judgments  recovered  in  such  actions  against  the  partnership  can 
only  be  enforced,  in  the  first  instance,  against  the  firm  property, 
and  can  only  be  extended  so  as  to  bind  the  individual  property 
of  the  several  partners  by  a  subsequent  direct  proceeding  against 
them,  or  some  of  them,  in  the  nature  of  a  scire  facias.^  The 
Kentucky  code  contains  a  peculiar  jDrovision  in  reference  to 
actions  brought  by  an  assignee  of  a  thing  in  action  where  the 
assignment  is  equitable  merely  —  that  is,  where  it  is  not  expressly 
authorized  by  statute  ;  in  such  a  case  the  assignor  must  be  joined 
as  a  party  either  jjlaintiff  or  defendant,  at  the  option  of  the  assignee 
who  brings  the  suit.'^     The  code  of  the  same   State   exj^ressly 

1  Rhoads    v.  Booth,    14    Iowa,    575.  same  stroke,  the  act  is  one,  but  it  is  the 

Three  plaintiffs  sued  jointly  for  a  niali-  consequences  of  that  act,  and  not  the  act 

cious  prosecution.     Wriglit  J.  said  :  "As  itself,  which   is  redressed,  and  therefore 

a  rule,  it  is  only  when  two  or  more  per-  tiie  injury  is  several.     There  cannot  be 

sons  are  entitled  to,  or  have  a  joint  inter-  a  joint  action,  because  one  does  not  share 

est  in,  the  property  affected,  or  to  the  in  the  sutieringof  tlie  other."     The  court 

damages  to  be  recovered,  that  they  can  further  held  that  the  objection  might  be 

unite  in  an  action.      Therefore,  several  tal<en  at  tlie  trial. 

parties  cannot  sue  jointly  tor  injuries  to  -  Ennis  v.   Harmony  Fire  Ins.  Co.,  3 

the  person,  as  for  slander,  or  battery,  or  Bosw.  516. 

false  imprisonment.     For  words  spoken  of         -^  See  supra,  §  121.     Kyerson  v.  Hen- 
parties in  their  joint  trade,  or  for  slander  drie,  2'!  Iowa,  480. 

of  title,  they  may  sue  jointly  ;  but  not  so  *  Dean   v.   English,  18    B.  Mon.    135. 

when    two    or   more   sue  for  slanderous  This  provision  is  somewhat  different  from 

words  which,  though  spoken  of  all,  apply  tliat  found  in  the  code  of  Indiana,  which 

to  them  all   separately  ;  or  in  a  case  of  requiies  the  assignor,  in  all  cases  where 

false  imprisonment  or  a  malicious  jjrose-  the  thing   in   action  is   not  assigned   by 

cution,  when  each,  as  individuals,  are  ini-  indorsement,  —  that  is,  where  it  is  not  a 

prisoned  or   prosecuted.      The   principle  negotiable  instrument,  —  to  be  joined  as  a 

underlying  is,  that  it  is  not  the  act,  but  defendant,  in  order  to  answer  to  the  as- 

the  consequences  which   are   looked   at.  signraent.     Indiana  code,  §  6. 
Thus,  if  two  persons  are  injured  by  the 


ACTIONS   IN   SPECIAL   CASES.  .  277 

authorizes  the  owner  of  land  to  maintain  appropriate  actions  to 
recover  damages  for  any  trespasses  or  other  injuries  committed 
thereon,  although  he  may  not  be  in  the  actual  possession,  or  have 
the  right  to  the  immediate  possession,  at  the  time  when  the  tres- 
pass or  other  injury  complained  of  was  committed.^  This  is 
undoubtedly  the  true  interpretation  of  the  codes  of  all  the 
States  without  any  express  provision  to  that  effect.  The  common- 
law  distinction  between  "  trespass  "  and  "  case  "  being  abolished, 
the  owner  is  entitled  to  maintain  an  action  and  recover  damages, 
by  alleging  the  actual  facts  which  constitute  the  cause  of  action, 
although  under  the  former  procedure  he  would,  under  certain 
circumstances,  sue  in  "  trespass,"  and  under  other  circumstances 
in  "  case."  The  nature  of  the  right  of  action  has  not  been 
changed,  nor  has  the  amount  of  damages  recoverable  been 
affected,  but  the  special  and  technical  rules  which  governed  the 
use  of  the  two  common-law  actions  mentioned,  have  certainly 
been  abrogated.^  A  legatee  or  distributee  of  an  estate  in  the 
hands  of  an  executor  or  administrator  may,  under  certain  circum- 
stances, maintain  an  action  to  recover  a  debt  or  demand  due  to 
the  deceased,  if  for  any  reason  the  personal  representative  is 
legally  disabled  from  suing.  Thus,  for  example,  where  B.  in  his 
lifetime  was  indebted  to  A.,  both  die,  and  the  same  person  is 
made  administrator  or  executor  of  each  estate,  a  legatee  or  dis- 
tributee of  A.'s  estate  may  bring  an  action  in  his  own  name 
against  the  one  who  is  thus  the  administrator  of  B.'s  estate,  as 
well  as  executor  or  administrator  of  A.'s  estate.  This  person,  as 
the  representative  of  one  estate,  cannot  sue  himself  as  represen- 
tative of  the  other,  and  therefore  the  beneficiaries  of  the  creditor 

1  Bebee  v.  Hutchinson,  17  B.  Mon.  mon-law  "  case,"  —  that  is,  damages  for 
496.  the  injviry  to  the  inheritance.      To  non- 

2  Brown  i'.  Bridges,  31  Iowa,  138, 145.  suit  tlie  plaintiff,  is  to  restore  the  old  dis- 
A  plaintiff  suing,  as  owner  of  land,  for  tinctions  between  these  technical  actions, 
injuries  done  by  a  wrong-doer,  cannot,  This  doctrine  is  e.xpressly  sustained  by 
consistently  with  the  plain  import  of  the  the  Supreme  Court  of  Missouri;  Fitch  v. 
codes,  be  nonsuited,  because  he  was  out  of  Gosser,  54  Mo.  267  ;  and  by  a  very  recent 
possession,  and  not  entitled  to  possession,  decision  in  New  York,  Adams  v.  Farr,  5 
Undoubtedly,  he  may  not  be  able  to  re-  N.  Y.  Sup.  Ct.  59 ;  citing  Robinson  v. 
cover  such  damages  as  he  would  have  Wheeler,  25  N.  Y.  252 ;  S.  P.  Foster  v. 
recovered  if  the  action  was  the  common-  Elliott,  38  Iowa,  216,  224.  But  see  Town- 
law  "trespass,"  —  that  is,  damages  for  the  send  v.  Bissell,  5  N.  Y.  Sup.  Ct.  583,  per 
wrong  done  to  his  possession  as  well  as  to  Gilbert  J.,  a  contrary  dictum,  which,  in 
the  inheritance  ;  but  he  is  certainly  en-  the  face  of  these  authorities,  and  of  the 
titled  to  recover  such  damages  as  he  would  code  itself,  is  clearly  a  mistake. 

have  obtained  if  the  action  was  the  com- 


278  CIVIL    REMEDIES. 

estate  are  permitted  to  prosecute  the  action.  It  seems,  also,  that 
such  action  can  be  brought  either  by  one  of  the  legatees  or  dis- 
tributees, or  by  all  of  them  jointly. ^ 

§  2'18.  It  is  held  in  New  York  that  a  mother  may  maintain  an 
action  for  the  seduction  of  her  infant  daughter  where  the  father 
is  dead,  and  the  daughter  is  dependent  upon  the  mother,  although 
the  latter  has  remarried."  This  rule  has  also  been  extended  to 
the  case  when  the  father  is  not  dead,  but  has  abandoned  his  wife, 
who  lives  separate  and  apart  from  him,  and  maintains  herself  and» 
family  by  carrying  on  a  business  in  which  the  daughter  is  actually 
employed  as  an  assistant,  rendering  substantial  services.  The 
action  being  founded  upon  the  relation  of  master  and  servant, 
and  not  upon  that  of  parent  and  child,  and  the  mother  carrjdng 
on  a  business  in  which  the  daughter  is  employed  as  a  servant,  all 
the  requisites  of  the  general  doctrine  relating  to  the  action  of 
seduction  are  fully  complied  with.^  These  decisions  are  based 
upon  common-law  principles  independently  of  any  changes  made 
by  statute.  Tlie  codes  of  several  States,  however,  contain  special 
provisions  authorizing  actions  to  be  brought  by  fathers,  or,  in 
case  of  their  death  or  desertion  of  their  families,  by  mothers,  and 
by  guardians,  to  recover  damages  for  the  seduction  of,  or  for  the 
death  of  or  injuries  to,  their  children  or  wards.^  A  woman  is 
permitted,  in  a  few  States,  to  maintain  an  action  and  recover 
damages  for  her  own  seduction.^ 

'  Fisher  t-.  Hubbell,  65  Barb.  74;  s.  c.  a  distribution,  cptare.    Kellej'  v.  Thornton, 

1  N.  Y.  Sup.  Ct.  97.     It  was  also  held  that  56  Mo.  325.     In   Kentucky  it   lias  been 

Hubbell  —  the  common  trustee  —  should  expressly  decided  that  several  distributees 

be  made  a  defendant,  both  as  adminis-  cannot  unite  in  a  legal  action  against  the 

trator  of  A.'s  estate,  and  as  executor  of  administrator  to  recover  the  shares  found 

B.'s  estate ;  of  the  latter,  because  he  thus  due   to  each   upon   a  settlement   of  the 

represented  the  debtor ;  and  of  the  for-  estate.     Pelly  v.  Bowyer,  7  Bush,  513. 
mer,  because  he  was  the  regular  plaintiff,  ^  Lampman  v.  Hammond,  3  N.  Y.  Sup. 

and  should  be  made  a  party  in  order  to  Ct.  293;  Gray  r.  Durland,  50  Barb.  100, 

conclude  the  estate  by  the  judgment.     It  51  N.  Y.  424;  Furman   v.  Van  Sise,  56 

was  said  that,  in  order  to  bind  the  estate  N.  Y.  435;   Badgley  v.  Decker,  44  Barb, 

of  a  deceased  person,   his  administrator  577. 

or  executor  must  be  made  a  party  in  his  ^  Badgley  v.  Decker,  44  Barb.  577. 

representative  cajiacity ;  it  is  not  sufficient  *  See  s(//mj,  §  120,  where  the  States  are 

that  he  be  made  a  party.     See  Haynes  enumerated.     A  statute  which  dispenses 

V.  Harris,  33  Iowa,  516.     In  Missouri,  the  "  with  any  allegation  or  proof  of  loss  of 

distributees  of  an  estate  in  the  hands  of  service"  does  not  change  the  rules  of  the 

an  administrator  may,  before  an  order  for  law  as  to  the  parties  ;  the  seduced  woman 

distribution  is  made,  all   unite  in  a  joint  cannot  bring  the  action.     Woodward   v. 

action  on  the  administrator's  bond  against  Anderson,  9  Bush,  624. 
him  and  his  sureties.    Whether  such  joint  ^  See  siyra,  §  120. 

action  would  be  proper  after  the  order  for 


ACTIONS    BY    HUSBAND    AND    WIFE.  279 

§  234.  Second :  Actions  hy  and  between  Husband  and  Wife. 
The  common-law  rules  as  to  the  power  of  a  wife  to  bring  actions 
in  her  own  name,  and  as  to  the  necessity  of  making  husband  and 
wife  coplaintiffs  in  all  actions  where  she  could  be  a  party  at  all, 
relating  to  her  property  or  to  wrongs  suffered  by  her,  have  been 
either  utterly  swept  away  or  greatly  modified  in  ail  the  States 
which  have  adopted  the  reformed  system  of  procedure.  These 
common-law  requisites  were  concise!}^  stated  in  a  former  para- 
graph of  this  section.^  In  equity,  while,  as  a  general  rule,  the 
husband  was  joined  as  a  coplaintiff  even  in  suits  touching  her 
equitable  separate  estate,  yet,  when  their  interests  were  at  all 
antagonistic,  and  especially  when  the  proceeding  was  in  any 
manner  adverse  to  him,  she  was  permitted  to  sue  without  uniting 
him  with  her,  and  even  to  make  him  a  defendant.  Her  action, 
however,  was  prosecuted  in  her  name  by  a  next  friend.^ 

§  235.  The  statutory  legislation  upon  this  subject  entirely 
abandons  the  common-law  theory,  and,  so  far  as  it  resembles  any 
previous  doctrine,  rather  adopts  that  of  the  equity  tribunals, 
although  in  most  instances  it  is  far  in  advance  of  the  greatest 
liberality  ever  allowed  b}-  the  courts  of  chancery.  In  New  York 
there  is  now  no  instance  in  which  a  husband  and  wife  must,  or 
even  may,  be  joined  as  coplaintiffs,  by  virtue  merely  of  the  mar- 
riage relation,  in  actions  affecting  either  his  or  her  individual 
rights.  If,  however,  the  husband  and  wife  are  both  in  any  man- 
ner interested  in  the  subject-matter  of  the  controversy,  they  may 
be  united  as  plaintiffs ;  but  this  would  result  from  the  existence 
and  nature  of  the  common  interest,  and  not  from  the  marital 
relation.  Special  statutes,  in  reference  to  married  women  and 
their  property,  provide  that  a  wife  must  sue  alone,  and  without 
a  guardian  or  next  friend,  in  all  actions  relating  to  her  separate 
property,  which  includes  all  the  estate,  real  and  personal,  which 
she  owns  at  the  time  of  the  marriage,  and  all  that  she  maj'  ac- 
quire subsequently  thereto,  and  all  of  her  personal  earnings,  and 
the  proceeds  of  her  business ;  in  all  actions  upon  contracts  made 
by  and  with  her  in  reference  to  her  property,  or  in  the  course  of 
any  business  which  she  may  carry  on ;  and  in  all  actions  brought 
to  recover  damages  for  any  injuries  to  her  person  or  character ; 

1  See  snpra,  §  191. 

2  Story,  E(i.  PL,  §§  61,  63 ;  1  Daniell's  Chan.  PI.  (-Ith  Am.  ed.),  pp.  109,  110. 


280  CIVIL   REMEDIES. 

and  in  all  actions  against  her  husband.^  It  thus  appears  that  in 
no  case  is  it  proper  for  a  husband  to  be  united  as  coplaintiff  with 
his  wife,  in  New  York,  merely  because  they  are  husband  and 
wife. 

§  23G.  There  are  two  general  types  or  forms  of  the  statutory 
provision,  as  contained  in  most  of  the  codes,  while  in  a  few  of 
the  States  the  legislation  is  special,  as  it  is  in  New  York.  The 
first  of  these  forms  is  the  following :  "  When  a  married  woman  is 
a  party,  her  husband  must  be  joined  with  her,  excejot  that,  (1) 
When  the  action  concerns  her  separate  property,  she  may  sue 
alone;  (2)  AVhen  the  action  is  between  herself  and  her  husband, 
she  may  sue  and  be  sued  alone  ;  but  in  no  case  shall  she  be  re- 
quired to  sue  or  defend  by  guardian  or  next  friend  [except  she 
be  under  the  age  of  twenty-one  j^ears  —  Indiana']  "  ^  The  other 
form  differs  from  this  in  requiring  the  interposition  of  a  next 
friend,  "  When  a  married  woman  is  a  party,  her  husband  must 
be  joined  with  her ;  except  when  the  action  concerns  her  separate 
property,  she  may  sue  alone,  without  her  husband,  by  a  next 
friend.  When  the  action  is  between  herself  and  her  husband, 
she  may  sue  or  be  sued  alone ;  but  in  every  such  action,  other 
than  for  a  divorce  or  alimony,  she  shall  prosecute  and  defend 
by  her  next  friend."  ^  In  Iowa,  the  change  is  more  radical,  and 
reaches  the  same  result  as  the  New  York  statutes.  "  A  married 
woman  may,  in  all  cases,  sue  and  be  sued,  without  joining  her 
husband  with  her,  to  the  same  extent  as  if  she  were  unmarried ; 
and  an  attachment  or  judgment  in  such  action  shall  be  enforced 
by  or  against  her  as  if  she  were  a  single  woman."  ^  Also, 
"  Should  either  the  husband  or  wife  obtain  possession  or  control 
of  property  belonging  to  the  other,  either  before  or  after  marriage, 

^  Laws  of  N.  Y.,  1860,  ch.  90,  §  7  ;  ified,  but  is  substantiall.v  tlie  same.  In 
Laws  of  18G2,  ch.  174,  §§  3,  5,  7.  The  the  first  subdivision  tlie  following  is 
114tli  section  of  tlie  New  York  code  re-  inserted  after  tlie  words  "  separate  prop- 
mains  uiu'epealed,  althoujih  these  later  erty,"  viz.,  "  or  her  right  or  claim  to 
statutes  have  entirely  abrogated  or  modi-  the  homestead  property."  A  third  subdi- 
fied  most  of  its  provisions.  vision  is  added,  as  follows:  "(3)  When 

~  This  form  is  found  in  Indiana  code,  she   is   living   separate   and   apart   from 

§   8;  Minnesota   code,   §    29;    California  her  husband,    she   may  sue  or   be  sued 

code,    §  370 ;    Wisconsin  code,   ch.   122,  alone."     The   last  clause,  relating   to   a 

§    15;'  South  Carolina,  §   137;    Oregon,  guardian  or  next  friend,  is  omitted  ;  other- 

§30;  Nevada,  §  7  ;  Dacotah,  §67;  Flori-  wise  the  provision  is  identical  with  that 

da,  §  6-5 ;    North  Carolina,  §  56;   Idaho,  given  in  the  te.xt. 

§  7  ;  Wyoming,  §  35;  Montana,  §  7.    Tlie  ^  Ohio  code,  §  28  ;  Nebraska  code,  §  33. 

provision  in  California  is  slightly  mod-  .       ■*  Iowa  code,  1873,  §  2562. 


ACTIONS   BY   HUSBAND    AND    WIFE.  281 

the  owner  of  the  property  may  maintain  an  action  therefor,  or 
for  any  right  growing  out  of  the  same,  in  the  same  manner  and 
extent  as  if  they  were  unmarried."  ^  And,  "A  wife  may  recover 
the  wages  of  her  personal  labor,  and  maintain  an  action  therefor 
in  her  own  name,  and  hold  the  same  in  her  own  right ;  and 
she  may  prosecute  and  defend  all  actions  at  law  and  in  equity 
for  the  preservation  and  protection  of  her  rights  and  property  as 
if  unmarried."  2  In  Kansas,  "  A  woman  ma}^  while  married,  sue 
and  be  sued  in  the  same  manner  as  if  she  were  unmarried."^ 
The  Missouri  statute  provides  that  "  When  a  married  woman  is 
a  party,  her  husband  must  be  joined  with  her  in  all  actions,  except 
those  in  which  the  husband  is  plaintiff  only,  and  the  wife  defend- 
ant only,  or  the  wife  plaintiff  only,  and  the  husband  defendant ; 
and  in  all  such  actions,  when  the  husband  is  plaintiff  and  the  wife 
defendant,  or  the  wife  plaintiff  and  the  husband  defendant,  it 
shall  be  lawfid  for  the  wife  to  sue  or  defend,  by  her  agent  or 
attorney,  as  she  may  think  proper ;  and  in  all  actions  by  husband 
and  wife,  or  against  husband  and  wife,  they  may  prosecute  the 
same  by  attorney,  or  the}^  or  either  of  them,  may  defend  by 
attorney ;  and  it  shall  not  be  necessar}?^  for  the  wife,  in  any  such 
action,  to  sue  with  her  husband  by  next  friend,  or  to  appear  and 
defend  by  next  friend."  ^  Certain  other  special  provisions  may 
be  properly  stated  in  this  connection.  "  When  a  husband  has 
deserted  his  family,  the  wife  may  prosecute  or  defend,  in  his 
name,  any  action  which  he  might  have  prosecuted  or  defended, 
and  with  the  same  effect."^  In  addition  to  the  general  clause 
already  quoted,  the  Indiana  code  contains  the  following :  "  Hus- 
band and  wife  may  join  in  all  causes  of  action  arising  from  injuries 
to  the  person  or  character  of  either,  and  both  of  them,  or  from 
injuries  to  the  property  of  either,  and  both  of  them,  or  arising 
out  of  any  contract  in  favor  of  either,  and  both  of  them."  ^ 

1  Iowa  code,  §  2204.  the  price,  the  wife  was  held  not  to  be  a 

2  Ibid.  §  2211.  necessary  party,     Reugger  v.  Lindenber- 
8  Gen.  Stat.,  1868,  ch.  62,  §3, -code,  §26.     ger,  53  Mo.  364. 

*  Missouri     civil    code  ;     "  Wagner's  5  Minnesota  code,  §  34  ;  Iowa,  §  2564  ; 

Stat.,"  art.  1,  §  8;  Laws  of  1868,  p.  87.  Indiana,  §  26. 

Land  belonged  in  fee  to  a  wife,  but  tiie  6  Indiana  code,  §  794.     I  confess  myself 

husband  had  a  life-estate  therein ;  it  was  unable  to  guess  even  at  the  meaning  of 

conveyed  by  deed  to  the  defendant,  who  this  provision.     Does  it  enact  that  they 

promised  to  pay  the  purchase  price  to  the  may  unite  when  the  injury  is  to  so\\\e  joint 

husband.     In  an  action   brought  by  the  right,  as  to  property  owned  by  them  both, 

husband  to  enforce  the  vendor's  lien  for  etc.  1     If  so,  why  insert  the  word  either? 


282  CIVIL   REMEDIES. 

§  237.  By  summing  up  and  comparing  these  various  statutory 
requirements,  we  find  the  general  rule  to  be,  that,  in  all  actions 
where  the  wife  is  a  party,  —  and,  of  course,  where  she  is  a  plain- 
tiff, —  the  husband  must  be  joined  with  her,  thus  retaining  the 
rule  which  prevailed  before  the  new  system.     If,  however,  the 
action  concerns  her  separate  property,  or  if  it  is  directly  between 
herself  and  her  husband,  she  may  sue  alone,  —  that  is,  without 
uniting  her  husband  with  her.     In  respect  to  these  classes  of 
actions  there  is,  however,  a  difference  in  the  practice.     In  cer- 
tain States  it  is  expressly  required,  that,  when  she  sues  without 
joining  her  husband,  it  must  be  by  a  next  friend,  while  in  others 
she  need  not  resort  to  any  such  assistance  in  prosecuting  her 
actions.     It  does  not  fall  within  the  scope  of  this  treatise  to  de- 
termine the  nature  of  a  married  woman's  '*  sejiarate  property,"  as 
spoken  of  in  these  various  statutory  provisions  relating  to  parties.^ 
In  some  States  the  wife  is  clothed  with  most  of  the  capacities 
and  powers  which  belong  to  a  single  woman,  and  in  others,  the 
departure  from  the  common-law  doctrine  is  by  no  means  so  com- 
plete.    Wherever  the  general  statutory  rule  just  stated  prevails, 
the  husband  and  wife  must  be  united  in  all  actions  where  such 
joinder  was  formerly  required,  other  than  the  two  classes  ex- 
pressly excepted,  —  that  is,  actions  concerning  her  separate  prop- 
erty, and  those  directly  between  herself  and  her  husband.    Every 
suit,  therefore,  brought  to  recover  damages  for  the  personal  injury, 
bodily  or  mental,  sustained  by  the  wife  from  any  tort  to  her 
person  or  character,  must,  in  those  States,  be  prosecuted  b}^  the 
husband  and  wife  jointly.    The  conclusions  thus  reached  are  true 
oidy  in  the  States  whose  codes  contain  one  or  the  other  of  the 
two  general  forms  of  the  statutory  provision  quoted  in  a  fore- 
going paragraph.     As  these  forms  are  found  in  many  of  the  States, 
they  furnish  the  general  doctrine  of  the  new  procedure  in  refer- 
ence to  the  union  of  husband  and  wife  in  actions  relating  to  her 
interests.     In  New  York,  Iowa,  Kansas,  and  other  States  which 
have  entirely  abandoned  the  common-law  notions  upon  this  sub- 
ject, the  husband  is  not  to  be  made  a  party  plaintiff  in  any  action 
brought  by  the  wife,  whether  it  concerns  her  separate  property, 

It  certainly  cannot  be  possible  that  when  operative,    land    devised    to    a    married 

an  injury  is  done  to  the  husband  the  wife  woman  became  her  separate  property,  so 

may  join.  that  in  actions  concerning  it  slie  could  sue 

1  In  Minnesota,  while  the  statute  de-  alone.     Spencer  v.    Sheehan,    19    Minn, 

fining  the  wife's  separate  property  was  338,  346. 


ACTIONS    BY   HUSBAND   AND    WIPE.  283 

or  whether  it  is  based  upon  a  tort  done  to  her  person  or  character, 
or  upon  a  contract  entered  into  by  her.  On  the  other  hand,  the 
somewhat  blind  and  cumbrous  phraseology  of  the  Missouri  code, 
when  properly  interpreted,  limits  the  cases  in  which  the  wife 
may  sue  and  be  sued  alone,  to  actions  brought  by  the  wife  directly 
against  the  husband,  or  by  the  husband  directly  against  the  wife, 
and  in  Avhich  there  are  no  other  parties ;  in  actions  concerning 
her  separate  property,  both  must  appear  as  plaintiffs  on  the 
record.  1 

§  238.  Wherever  the  general  rule  as  above  described  prevails, 
"wherever  it  is  provided  that  the  wife  may  sue  alone  in  actions 
concerning  her  separate  property  and  in  certain  others,  as  desig- 
nated, it  is  generally,  if  not  universally  held,  that  the  language 
of  the  statute  —  "  may  sue  "  —  is  permissive  and  not  compulsory  ; 
she  has  her  option  to  sue  in  her  own  name  alone,  or  to  unite  her 
husband  as  a  coplaintiff ;  either  mode  of  bringing  the  action  is 
legal  and  proper.^  The  rule  in  Missouri  seems  to  have  vacil- 
lated ;  for  it  has  been  held  that  the  husband  need  not  be  made  a 
party  when  the  action  concerns  the  wife's  separate  property,  but 
she  must  sue  in  such  case  by  a  next  friend.^  When  a  note  and 
mortgage  were  given  to  a  husband  and  a  wife  jointly  as  security 
for  the  payment  of  money  of  the  wife  loaned  to  the  maker 
of  the  note,  on  the  death  of  the  husband  the  wdfe  may  sue  alone 
to  enforce  the  security,  both  on  the  ground  that  the  action  con- 
cerns her  separate  property,  and  because  she  is  the  surviving 
payee  and  mortgagee.*  In  Indiana,  the  wife  is  never  required  to 
sue  by  a  next  friend.^     In  Iowa,  prior  to  the  latest  modification 

1  See  supra,  §  236.  128,  action  by  wife  alone  for  price  of  land 

2  Kennedy  v.  Williams,  11  Minn.  314,  sold  by  her ;  Van  Maren  v.  Johnson,  15 
action  by  husband  and  wife  on  a  note  be-  Cal.  308,  action  by  both  for  money  due 
longing  to  the  wife ;  Nininger  v.  Board  wife  before  marriage ;  Norval  v.  Rice,  2 
of  Commissioners,  10  Minn.  133,  action  Wise.  22;  Botkin  v.  Earl,  6  Wise.  393. 
by  wife  alone  on  a  bond  belonging  to  her-  >*  Claflin  v.  Van  Wagoner,  32  Mo.  252. 
self;  Wolf  D.  Banning,  3  Minn.  202;  Gee  Tlie  rule  thus  laid  down  corresponds  with 
V.  Lewis,  20  Ind.  149,  action  by  both  for  that  established  by  the  second  general 
money  due  the  wife  ;  Adams  v.  Sater,  19  form  of  the  provision  found  in  many 
Ind.  418,  action  by  the  wife  alone  ;  Mar-  codes.  It  is  clearly  inconsistent  with  the 
tindale  v.  Tibbetts,  16  Ind.  200;  HoUings-  provision  quoted  in  §  236  from  the  Mis- 
worth  V.  State,  8  Ind.  257;  Corcoran  v.  souri  statute  as  it  now  stands.  There  has 
Doll,  32  Cal.  82,  action  by  both  on  a  note  probablj^  been  a  modification  in  the  legis- 
given  to  the  wife ;  Calderwood  v.  Pyser,  lation  of  that  State. 

31   Cal.  333,  action  by  both  to  recover  *  Shockley  v.  Shockley,  20  Ind.  108. 

lands  of  the  wife  ;  Kays  v.  Phelan,  19  Cal.  ^  Harlan  v.  Edwards,  13  Ind.  430. 


284  CIVIL   REMEDIES. 

of  the  statute  as  already  stated,  which  obviates  the  necessity  of 
joining  the  husband  in  any  action,  the  wife  could  sue  alone  in 
reference  to  her  separate  property.^  The  husband  is  an  indis- 
pensable party  in  all  cases  where  the  wife  is  a  party,  "  except 
that  where  the  action  concerns  her  separate  property  she  7na7/sue 
alone,'"  but  she  is  not  required  to  do  so.  "  The  separate  estate  of 
a  married  woman  in  Kentucky  is  that  alone  of  which  she  has  the 
exclusive  control,  independent  of  her  husl)and,  and  the  proceeds 
of  Avhich  she  may  dispose  of  as  she  pleases.  All  her  real  estate 
does  not  l)elong  to  lier  as  lier  separate  property.  That  character 
must  be  imparted  to  the  property  by  the  instrument  which  invests 
her  with  tlie  right  to  it."^  It  has  been  held  in  Kansas  that  a 
wife  can  only  maintain  an  action  in  her  own  name  on  a  note  or 
other  obligation,  upon  the  ground  that  the  demand  is  her  sepa- 
rate property.^  When  a  married  woman  in  California  engages  in 
business  in  her  own  name  as  a  "  sole  trader,"  under  the  statute 
authorizing  such  business,*  she  is  vested  "  with  the  exclusive 
ownership  and  control  of  all  the  money  and  property  invested  in 
the  trade  or  business  in  which  she  is  engaged  ;  and  as  to  such 
business  and  property  she  is  entirely  independent  of  her  hus- 
band," and  may,  and  perhaps  must,  bring  all  actions  concerning 
the  same  without  joining  her  husband  as  a  coplaintiff.^  A  mar- 
ried woman  may  sue  alone  in  the  same  State  to  recover  the  rent 
of  her  premises  which  have  been  leased.*" 

§  239.  The  following  are  instances  in  which  it  has  been  held, 
under  the  special  provisions  of  the  New  York  statutes,  that  the 
wife  must  sue  alone,  although  the  joinder  of  the  husband  does 
not,  as  decided  by  the  Court  of  Appeals,  defeat  the  action 
entirely.  The  doctrine  which  lies  at  the  foundation  of  these 
decisions  is  also  embodied  in  the  statutes  of  the  few  other 
States  which  have  followed  the  examj^le  of  New  York  by  utterly 
abrogating  the  common-law  rules  concerning  suits  by  husband 
and  wife.  The  cases  themselves  are  therefore  authoritative  prece- 
dents in  interpreting  the  corresponding  statutory  provisions  of 

i  Kramer  v.  Conger,  16  Iowa,  434.  is  certainly  broader  than  the  doctrine  of 

2  Beaumont  r.  Miller,  Stanton's   Ky.  this  case, 
code,  p.  42,  per  Stiles  J. ;  Petty  v.  Malier,  *  Act  of  April  12,  1852. 

14  B.  Mon.  246,  per  Simpson  J.  ^  Quttman   r.   Scannell,   7    Cal.   455, 

8  Hadley  v.  Brown,  2  Kans.  416.     The  458.     See  Swain  v.  Duane,  48  Cal.  358. 
statutory  provision  quoted  above,  in  §  236,  *>  Snyder  v.  Webb,  3  Cal.  83. 


ACTIONS   BY   HUSBAND    AND   WIFE.  285 

those  States.  The  wife  should  sue  alone  on  an  award  made  in 
her  favor  ;  '^  to  recover  damages  for  the  taking  or  the  conversion 
of  her  personal  property ;  ^  in  an  action  on  a  lease  executed  in 
her  name  ;  ^  to  recover  possession  of  her  lands ;  ^  to  recover 
damages  for  trespasses  upon  her  lands  ;  ^  to  recover  damages  for 
an  assault  and  battery  upon  herself ;  ^  to  recover  damages  for  the 
seduction  of  her  own  female  servant  when  she  carries  on  a  bus- 
iness in  which  the  servant  is  employed  ; "  to  recover  damages  for 
false  and  fraudulent  representations  by  which  she  was  induced  to 
convey  her  lands  ;  ^  in  an  action  against  a  common  carrier  to 
recover  the  value  of  articles  lost  or  destroyed,  althongh  gifts 
from  her  husband ;  ^  to  recover  the  price  agreed  to  be  paid  for 
personal  services  rendered  to  the  defendant.^*^ 

§  240.  As  the  result  of  the  New  York  statutes  modifying  the 
legal  relations  between  the  husband  and  wife,  either  may,  under 
certain  circumstances,  maintain  actions  of  a  legal  nature,  that  is, 
upon  a  legal  cause  of  action,  and  seeking  to  obtain  legal  relief, 
against  the  other.  It  would  seem,  however,  that  such  actions 
must  be  based  upon  rights  of  property  or  of  contract.  When 
the  husband,  prior  to  the  marriage  and  in  consideration  thereof, 
gave  his  intended  wife  a  promissory  note,  it  is  a  valid  demand  in 
her  hands,  and  she  may,  subsequent  to  the  marriage,  maintain  an 
action  against  him  upon  it.^^  The  wife  ma}'  bring  an  action  in 
her  own  name  against  her  husband  to  recover  the  possession  of 

1  Palmer  v.  Davis,  28  N.  Y.  242.  defenilant's  family   as   a   nurse.     In   an 

2  Ackley  v.  Tarbox,  31  N.  Y.  564.  action    brought   by    iier   to    recover    tlie 

3  Draper  v.  Stouvenel,  35  N.  Y.  507.  compensation  agreed  to  be  paid  for  such 
*  Darby  v.   Callaghan,   16  N.   Y.  71 ;  work  and  labor,  the  Supreme  Court  held 

Hillman  v.  Hillman,  14  How.  Pr.  456.  that  she  could  not  recover  ;  that  her  ser- 

5  Fox  V.  Duff,  1  Daly,  196.  vices    belonged   to    her    husband.      The 

•>  Mann  v.  Marsh,  35  Barb.  68.  statute  which  expressly  authorizes  her  to 

■^  Badgley  v.  Decker,  44  Barb.  577.  In  maintain  an  action  for  her  services  was 

this  case  the  wife,  living  separate  from  limited  to  the  case  in  which  such  services 

her  husband,  kept  a  boarding-house,  and  are  performed  in  some  business  carried  on 

her  daugiiter  aided  her  by  personal  ser-  by  her.     This  decision  is  a  virtual  repeal 

vices.  of  the  statute,  and  is  directly  opposed  to 

8  Newbery  v.  Garland,  81  Barb.  121.  Brooks  v.  Schwerin,  54  N.  Y.  343,  which 

3  Rawson  v.  Pennsylvania  Railroad,  2  holds  that  the  wife's  earnings  from  ser- 

Abb.  Pr.  N.  s.  220.  vices  rendered  in  the  household  belong  to 

i"  Adams  v.  Honness,   62   Barb.    326;  the  husband,  while  those  arising  from  ser- 

but  see,  per  contra,  Beau  v.  Kiah,  6  N.  Y.  vices  rendered  elsewhere  belong  to  her; 

Sup.  Ct.  464.     A  married  woman,  living  but  see  Sloan  v.  New  York  Central  Rail- 

■with  her  husband  and  family,  was   em-  road,  4  N.  Y.  Sup.  Ct.  135. 

ployed   by    the    defendant,    and,    under        i^  Wright  v.  Wright,  54  N.  Y.  437 ;  59 

such   employment,  rendered  services  in  Barb.  505. 


286  CIVIL   REMEDIES. 

laud  which  is  her  separate  property.^  She  may  also  sue  liim  to 
recover  her  persoual  property  ;  or  for  money  loaned  to  him  ;  or  to 
recover  the  value  of  services  rendered  in  his  business  under  an 
express  contract,  or  under  such  circumstances  tliat  a  promise  to  pay 
therefor  would  be  implied.^  When  the  husband  and  wife  are  owners 
in  common  of  land,  she  may  maintain  a  suit  against  him  for  a  par- 
tition.^ The  foregoing  cases  all  involve  and  are  based  upon  rights 
of  action  growing  out  of  her  ownership  of  property,  or  out  of  con- 
tract in  reference  to  such  property,  or  to  her  services.  No  rights  of 
action  arise  from  personal  torts  committed  by  the  husband,  and  she 
is  not  permitted  to  maintain  actions  against  him  to  recover  damages 
for  such  torts,  as  an  assault  and  battery,^  or  a  slander.*^  A  hus- 
band cannot  recover  in  an  action  against  his  wife  for  his  services 
rendered  to  her  in  the  oversight  and  management  of  her  separate 
projjert}^,  there  having  been  no  express  agreement  for  the  payment 
of  a  compensation,  and  the  circumstances  being  such  that  no 
promise  could  be  implied.^ 

§  241.  In  those  States  whose  codes  conform  to  the  general 
type  stated  and  described  in  a  preceding  paragraph,  the  rules  as 
to  parties  plaintiff  in  actions  for  torts  to  the  wife's  person  or 
character  remain  unaltered.  At  the  common  law  the  husband 
and  wife  w^ere  required  to  join  as  plaintiffs  in  all  actions  for  dam- 
ages from  the  wife's  personal  suffering,  either  bodily  or  mental, 
while  he  sued  alone  in  all  actions  for  damages  suffered  by  himself 
exclusively,  from  the  loss  of  her  society,  and  from  expenses  and 
the  like  occasioned  by  her  injuries.     Except  in  New  York,  Iowa, 

1  Minier  t'.  Minier,  4  Lans.  421.  The  ^  Longendyker.Longendyke,  44  Barb, 
court  draw  a  distinction  between  a  suit     366. 

like   tiiis  atiecting  her  separate  property  ^  Freetiey  v.  Freetley,  42  Barb.  641. 

and  one  brouglit  to  recover  damages  for  a  ^  Perkins  v.  Perkins,  62  Barb.  5ol.  No 

tort,  such  as  slander,  or  assault  and  bat-  express  contract  was  pretended  ;  and  the 

tery.     See,  however, />«•  contra,  Gould  i'.  plainlifl^elied  upon  an  implied  promise. 

Gould,  2'J  liow.  Pr.  441.     This  decision  is  All  that  the  court  decided  was,  as  stated 

in  plain  opposition  to  the  spirit  and  letter  in    the  text,  that  no   promise  could  be 

of  the  remedial  statutes.  implied,  and,  therefore,  no  cause  of  ac- 

2  Adams  i-.  Curtis,  4  Lans.  164.  The  tion  was  made  out.  P.  Potter  J.  went, 
action  was  against  a  firm  of  which  the  however,  much  further,  and  denied  that 
husband  was  a  member.  She  may  be  either  husband  or  wife  could  ever  main- 
his  creditor.  lie  Alexander,  37  Iowa,  tain  an  action  against  the  other  upon  a 
454.  contract,     express     or    implied.       These 

*  Moore  v.  Moore,  47  N.  Y.  467.     The  conclusions    of    the    learned    judge    are 

husband  and  wife  may  sue  jointly  for  the  directly  opposed  to  the  cases  cited  above, 

conversion  of  chattels  which    they  own  and  to  the  express  language  of  the  stat- 

jointly.     Chambovet  i-.  Cagney,  35  N.  Y.  ute. 
Superior  Ct.  474. 


ACTIONS    BY    HUSBAND    AND    WIFE.  287 

and  the  few  other  States  which  have  made  the  wife  in  all  respects 
like  the  single  woman  in  regard  to  the  capacity  of  instituting 
and  prosecuting  judicial  controversies,  these  ancient  doctrines  of 
the  common  law  have  been  preserved.  The  wife  should  certainly 
not  be  joined  as  a  plaintiff  with  her  husband  in  any  action  for 
tort  to  his  property,  or  for  fraud  in  relation  thereto,  unless  she 
has  some  interest  in  or  ownership  of  the  subject-matter  which 
has  also  been  affected  by  the  wrong.  Thus,  where  a  husband 
is  induced  by  the  false  and  fraudulent  representations  of  the 
grantor  to  purchase  land,  and  the  title  is  taken  in  his  wife's  name, 
but  the  consideration  is  wholly  paid  by  him,  she  having  in  fact 
no  prior  legal  interest  in  the  land  or  in  the  price,  an  action  for 
the  deceit  cannot  properly  be  brought  in  their  joint  names ;  he 
is  the  only  person  interested,  and  should  be  the  sole  plaintiff.^ 
The  same  has  been  decided  in  respect  to  an  action  for  fraud  prac- 
tised upon  a  husband  and  wife  by  which  a  conveyance  of  land 
was  obtained  from  them.  The  land  thus  conveyed  was  alleged 
to  have  been  their  homestead,  but  in  fact  the  wife  had  no  legal 
interest  in  it,  the  title  having  been  exclusively  in  the  husband. 
A  joint  action  to  recover  damages  for  the  deceit  under  these  cir- 
cumstances was  held  to  be  improper.^  If,  however,  the  wife  has 
a  legal  interest  or  ownership  in  the  subject-matter  which  has  been 
injured  or  lost  by  the  wrongful  act  or  fraud  of  the  defendant,  a 
joint  action  in  the  names  of  both  husband  and  wife  to  recover 
damages  is  proper.  This  doctrine  has  very  recently  been 
approved  by  the  New  York  Court  of  Appeals,  and  applied  to  the 

1  Bartges  v.  O'Neil,  13  Ohio    St.  72;  charged  with  having  injured  bv  the  im- 

Barrett  v.  Tewksbury,  18  Cal.  384.   In  the  puted  fraud.     At  most,  tlie  money  and  the 

first-named  case,  the  action,  being  in  the  land   bought,    if  the  title  passed,  would 

names  of  the  husband  and  wife  jointly,  seem  to  be  only  common  property,  being 

was  entirely  defeated  ;  the  misjoinder  was  possessed  or  acquired  during   coverture, 

made  fatal  to  the  recovery  by  the  hu.sband.  For  an  injury  to  this,  effected  by  deceit  or 

Tlie  second  case  presented  simdar  facts,  otherwise,  the  husband  would  be  entitled 

The  action  was  by  husband  and  wife  to  to  recover ;  there  is  no  necessity  or  rea- 

recover   damages  for  deceit  practised  in  son  for  joining  the  wife.     For  any  fraud 

the  same  manner.     The  land  purchased  or    deceit    practised    by   the   defendant, 

would   have   been   "common   property"  whetlier  the  injury  was  wrought  through 

under  the  laws  of  California,  —  that   is,  the  form  of  a  contract  or  not,  such  injury 

property  acquired   during  the  marriage,  affecting  the  common  property,  the  rem- 

but  over  wliich  the  husband  has  the  en-  edy  is  by  tiie  husband  alone,  who  is  the 

tire  control.      Baldwin  J.  said  (p.  336) :  representative  of  the  common  property, 

"  The  complaint  does  not  aver  that  the  and  has  the  management  and  control  of 

wife  had  any  special  or  several  interest  in  it."    See  Stcpank  v.  Kula,  36  Iowa,  568. 
the  purchase-money  paid  for  this  lot,  nor  2  j^ead  v.  Sang,  21  AVisc.  678;  but  see 

in  the  business  which   the   defendant  is  Simar  v.  Canaday,  63  N.  Y.  iUH. 


288 


CIVIL   REMEDIES. 


following  state  of  facts.  The  owner  in  fee  of  land  in  which  his 
wife  had  no  interest  except  her  inchoate  right  of  dower,  was 
induced  by  false  and  fraudulent  representations  to  sell  and  con- 
vey the  premises  to  the  defendant  by  a  deed  in  which  the  wife 
joined,  and  to  receive  in  consideration  thereof  certain  mortgages 
which  Avere  in  fact  worthless.  A  joint  action  by  the  husband 
and  Avife  to  recover  damages  for  the  deceit  was  sustained,  the 
husband,  it  was  said,  being  entitled  to  sue  on  account  of  his 
ownership  of  the  fee,  and  the  wife,  on  account  of  her  inchoate 
dower  right. ^ 

§  242.  When  a  wife  has  suffered  bodily  injury,  either  by  vio- 
lence or  by  negligent  or  unskilful  acts  of  the  wrong-doer,  and 


1  Simar  v.  Canaday,  -63  X.  Y.  298,  305, 
per  Folger  J.  "  Having  thus  sliown  tliat 
botli  Simar  and  liis  wife  had  a  cause  of  ac- 
tion, tlie  objection  of  the  defendant,  in  its 
exact  letter,  returns.  The  objection  was 
that  no  Joint  cause  of  action  in  favor  of  tiie 
plaintiffs  had  been  made  out.  The  cause  of 
action  wehavefoundin  the  husband  is,  that 
he  is  defrauded  of  the  fee  of  the  premises  ; 
that  in  the  wife  is,  that  she  is  defrauded  of 
her  inchoate  right  of  dower,  which  is  con- 
tingent upon  his  title  in  fee.  They  are 
not  strictly  the  same  thing,  yet  they  are 
bound  together  in  the  same  property; 
they  are  taken  out  of  the  owners  by  the 
same  instrument,  and  that  instrument  is 
induced  and  the  two  rights  are  lost  by  the 
same  fraudulent  acts.  One  recovery  will 
satisfy  both  claims,  and  one  judgment  will 
be  a  bar  to  another  action  by  either  of 
the  plaintiffs.  The  acts  of  the  defendant 
were  done  at  one  time  to  both  plaintiffs, 
and  were  an  injury  to  both  plaintiffs,  in- 
flicted at  the  game  time ;  hence  there  is 
such  a  common  interest  in  the  subject  of 
the  suit  as  to  authorize  them  to  join  in  one 
suit,  although  the  injury  which  each  sus- 
tained is  separate  and  distinct.  In  equity 
this  rule  has  often  been  announced.  And 
the  code  having  abolished  all  distinction 
between  actions  at  law  and  suits  in  equitj', 
and  provided  for  but  one  form  of  action, 
then  enacts,  that  all  persons  having  an  in- 
terest in  the  subject  of  the  action,  and  in 
obtaining  the  relief  demanded,  may  be 
joineil  as  plaintiffs.  Here  both  plaintiffs 
have  an  interest  in  the  subject  of  the  ac- 
tion, and  both  have  an  interest  in  the  re- 


lief demaniled."  This  is  certainly  an 
extraordinary  decision,  and  introduces  a 
rule  before,  I  think,  unthought  of,  ^ 
namely,  that  whenever  the  owner  in  fee 
is  induced  by  fraud  to  convey  his  land, 
and  the  wife  joins  in  the  deed,  the  two 
may  maintain  a  joint  action  and  recover 
a  single  judgment  in  so//c/o  for  their  joint 
damages.  Granting  that  she  has  a  right 
of  action  for  the  loss  of  her  inchoate 
dower,  and  even  that  she  and  her  husband 
could  be  made  coplaintifis  in  one  suit, 
it  is  plain  that  they  have  no  common  or 
joint  right  to  damages,  and  that  the  dam- 
ages to  which  they  are  respectively  en- 
titled must  always  be  unequal.  The 
husband's  measure  of  damage  is  the  value 
ofthe  whole  land  and  of  his  estate  in  fee 
therein ;  the  wife's  measure  of  damage,  at 
most,  is  tlie  value  of  her  inchoate  dower 
right.  Assuming  that  this  inchoate  dower 
is  susceptible  of  measurement,  so  that  the 
value  thereof  can  be  ascertained,  it  must 
necessarily  be  far  less  in  amount  than  the 
value  of  the  fee.  Yet  this  decision  gives 
to  the  wife,  in  virtue  of  her  inchoate 
dower,  a  joint  and  equal  right  with  lier 
husband  in  the  entire  value  of  the  prem- 
ises which  had  belonged  to  him  alone. 
The  decision  cannot  be  supported  either 
on  principle  or  on  authority  ;  the  essential 
difference  between  the  husband's  fixed 
certain  interest,  capable  of  being  ascer- 
tained, and  the  wife's  uncertain,  contingent 
interest,  under  all  possible  circumstances 
much  less  than  her  husband's,  seems  to 
have  utterly  escaped  the  attention  of  the 
court. 


ACTIONS    BY    HUSBAND    AND    WIFE.  289 

the  injury  is  of  such  a  nature  as  to  disable  her  for  a  while  and 
make  medical  or  other  attendance  necessary,  a  joint  action  is  not 
the  proper  one  in  which  to  recover  the  husband's  damages  for  his 
loss  of  her  society  and  for  the  expenses  caused  by  the  wrong 
done  to  her  ;  such  damages  can  only  be  recovered  in  an  ac- 
tion brought  by  the  husband  as  the  sole  plaintiff.^  If,  on  the 
other  hand,  the  compensation  sought  is  for  the  personal  wrong 
done  to  her,  both  must  unite  as  plaintiffs  in  all  those  States 
which  follow  the  general  form  ;  as,  for  example,  in  suing  for  a 
slander  or  libel  upon  the  wife,  the  husband  and  wife  must  sue 
jointly,  unless  he  has  suffered  some  special  damage,  and  the 
object  of  the  proceeding  is  to  obtain  compensation  therefor.^ 
The  same  rule  applies  to  all  torts  to  the  person  of  the  wife  ;  for 
the  injuries  to  her,  both  husband  and  wife  must  join  ;  for  the 
injuries  special  to  him,  such  as  loss  of  her  society,  expenses 
incurred,  and  the  like,  he  must  sue  alone.^  It  has  even  been 
held  in  a  State  where  the  cause  of  action  for  a  personal  tort  sur- 
vives, that,  when  a  claim  for  damages  against  a  physician  for 
malpractice  existed  in  favor  of  a  wife,  and  she  died,  her  husband 
must  be  joined  as  a  coplaintiff  with  her  administrator  in  prose- 
cuting an  action  to  enforce  such  demand.*  If  the  gravamen  of 
the  action  is  a  tort  to  the  wife's  person,  the  general  rule  above 
stated  applies,  and  the  husband  must  be  joined,  although  the 
action  might  be  brought  in  form  ex  contractu.  As  an  example,  if 
the  wife  has  been  injured  by  the  negligence  or  other  wrongful 
act  of  a  carrier,  who  was  transporting  her  as  a  passenger,  although 
the  action  might  be  in  form  based  upon  the  contract  of  passage 
made  with  her,  the  injury  being  proved  in  enhancement  of  dam- 
ages, or  might  be  in  form  directly  based  upon  the  tort,  yet  in 
either  ease  the  very  gist  of  the  claim  would  be  the  negligent  or 
tortious  act  of  the  defendant,  and  the  husband  and  wife  must 

1  Kavanaugyi  v.  Janesville,  24  Wise.  ^  Long  v.  Morrison,  14  Ind.  595,  597; 
618,  action  for  injuries  to  wife  from  a  ile-  Mclvinney  v.  Western  Stage  Co.,  4  Iowa, 
fective  sidewalk  ;  Barnes  v.  Martin,  15  420.  See  remark  in  last  j)rece<linjj  note. 
Wise.  240,  assault  and  battery  on  wife;  Dailey  r.  Houston,  58  Mo.  361,  366  ;  Smith 
Smith  V.  St.  Joseph,  55  Mo.  456,  458  ;  v.  St.  Joseph,  55  Mo.  456,  458  ;  Rogers  v. 
Dailey  v   Houston,  58  Mo.  361,  366.  Smith,  17  Ind.  323;  Oliio  &  M.  R    R.  v. 

2  Johnson  V.  Dioken,  25  Mo.  580;  Tiiidall,  13  Ind.  366  ;  Boyd  u.  Blaisdell,  15 
Enders  v.  Beck,  18  Iowa,  86.     This  lat-  Ind.  73. 

ter  decision  was   made   under  a  statute  ^  Long  v.  Morrison,  14  Ind.  595. 

different  from  that  which  is  now  in  force 
in  Iowa.  , 

19 


290  CIVIL    REMEDIES. 

therefore  unite  as  coplaintiifs  in  order  to  recover  the  damages 
resulting  from  her  personal  injuries.^ 

§  243.  The  doctrine  stated  and  illustrated  in  the  preceding 
paragraph  obtains  alone  in  those  States  whose  codes  conform  to 
the  general  type.  In  the  few  others  whose  statutes  have  com- 
pletely abrogated  the  ancient  principles  respecting  tlie  marriage 
rehxtion,  the  Avife  must  sue  alone  in  her  own  name  in  actions 
based  upon  torts  to  her  own  person,  as  well  as  in  actions  con- 
cerning her  own  property,  or  in  those  founded  upon  her  contracts. 
Cases  illustrating  this  rule  as  it  prevails  in  New  York,  have 
already  been  given.^  Similar  conclusions  have  been  reached 
by  the  courts  of  the  other  States  whose  legislation  is  substantially 
the  same  as  that  of  New  York.  Thus  it  is  held  in  Iowa,  under 
the  existing  statutory  provisions,  that  a  wife  must  be  the  sole 
plaintiff  in  an  action  instituted  to  recover  damages  for  a  malicious 
prosecution  of  herself ;  the  joinder  of  her  husband  is  improper, 
since  the  damages  when  recovered  are  her  own  separate  property, 
in  which  he  has  no  interest  or  share  ;  ^  and,  on  the  same  principle, 
a  suit  for  a  libel  upon  herself  must  be  brought  by  the  wife 
alone. ^ 

§  244.  While  the  general  rule  of  the  new  procedure,  as  it  is 
found  in  most  States,  requires  a  joinder  of  husband  and  wife  in 
actions  for  torts  to  her  person,  she  may  sue  alone  to  recover  dam- 
ages arising  from  torts  and  negligences  and  other  wrongs  to  her 
own  property ;  these  actions  fall  within  the  language  of  the 
codes,  and  plainly  "  concern  her  separate  property."     Thus  it  has 


1  Sheldon  v.  Steamship  "  Uncle  Sam,"  son  of  a  married  woman,  she  must  join 

18  Cal.  526  ;  Warner  v.  The  Same,  9  Cal.  with  the  husband  in  the  action  ;  and  it  is 

697.     Eacli  of  tliese  cases  was  an  action  immaterial  that  the  injury  is  charged  to 

by  husband  and  wife  to  recover  damages  have  been  committed  in  violation  of  a 

against  the  carrier,    the  wife   being  tlie  contract.     If  the  act  producing  the  injury 

passenger.       The   plaintiffs   alleged   and  be  itself  tortious,  it  may  be  so  treated  for 

proved  deceit  by  defendant,  wrongful  de-  all  remedial  purposes,  and  it  would  be  ab- 

tention  of  the  passengers,  by  whicii  they  surd  to  hold  that,  because  the  wrong  done 

suffered  greatly,  —  were  made  sick,  and  amounts  to  the  breacli  of  a  contract,  it  is 

other  personal  injuries.     The  defence  re-  therefore  purged  of  its  tortious  character." 

lied   on   a    misjoinder    of    the   plaintiffs.  The  opinion  holds  that  the  commondaw 

Cole  J.  said   (p.  533  of  the  first  case):  rule  in  the  case  of  torts  to  wife's  person  is 

'•  We  agree  that  the  plaintiffs  cannot  re-  unchanged  in  California, 
cover  jointly  in  an  action  ex  contractu,  for  ^  See  supra,  §  239. 

a  breach  oj  the  contract ;  but  this  does  not  ^  Mnsselman   v.   Galligher,   32    Iowa, 

appear  to  us  a  sufficient  answer  to  a  re-  383. 

covery  in  tiie  present  case.  ...  It  is  well  *  Pancoast  v.   Burncll,  32  Iowa,  394. 

settled  tliat  for  an  injury  done  to  the  per-  See  Shuler  i;.  Millsap's  Ex'or,  71  N.  C.  297. 


ACTIONS   BY   HUSBAND   AND    WIFE.  291 

been  held  that  the  wife  may  maintain  a  suit  in  her  own  name  to 
recover  damages  for  a  trespass  to  Land  owned  by  her,  "  although 
her  husband  occupied  the  land  in  the  usual  manner  with  her  and 
their  family,  and  cultivated  it,  but  had  no  legal  or  other  rights 
in  it."  ^  If  she  can  prosecute  a  suit  for  trespass,  she  can  certainly 
do  the  same  when  the  injury  is  negligent  instead  of  violent  and  in- 
tentional. On  the  other  hand,  there  are  circumstances  under  which 
an  action  should  be  maintained  by  the  husband  alone,  although 
the  wife  may  have  or  seem  to  have  some  interest  in  the  subject- 
matter  of  the  controversy.  Thus  in  California,  he  must  sue  alone 
in  actions  relating  to  the  "  common  property  "  of  the  husband  and 
wife,  and  in  those  relating  to  "  homesteads  "  as  the  same  are 
defined  and  regulated  by  the  statutes  of  the  State.^  These  sub- 
jects, however,  depend  entirely  upon  the  special  provisions  of 
the  statutes  in  the  several  commonwealths,  and  have  no  proper 
connection  wath  the  general  system  of  procedure  established  by 
the  various  codes.  It  seems  that  the  husband  alone  can  sue  for  a 
conversion  or  loss  of  or  injury  to  those  articles  of  personal  use 
belonging  to  the  wife,  —  her  clothing  and  ornaments,  —  which  at 
the  common  law  constitute  her  paraphernalia.^ 

§  245.  Whether,  under  the  legislation  of  the  various  States, 
actions  for  tort  can  be  maintained  by  the  wife  against  the  husband, 
or  by  the  husband  against  the  wife,  does  not  seem  to  have  been 
definitively  settled  by  judicial  decision.  The  departure  from  the 
ancient  theor}^  of  the  marriage  relation  has  been  as  great  in  New 
York  as  in  any  other  commonw-ealth,  and  far  greater  than 
in  most,  and  yet,  as  has  been  shown,  the  courts  of  that  State 
have  declared  against  the  possibility  of  actions  between  the 
spouses  for  any  personal  torts  committed  by  one  upon  the  other, 
such  as  libels,  assault  and  battery,  and  the  like.  The  same  result 
would  seem  to  be  inevitable  under  the  more  restricted  legislation 
of  other  States,  for  their  statutes  which  modify  the  common-law 
doctrines  of  marriage  are  confined  in  their  terms  to  her  power 
over  her  separate  propert}^  and  over  contracts.  Actions  between 
husband  and  wife,  based  upon  torts  done  to  property,  have  arisen, 


1  Boos  V.  Comber,  24  Wise.  499.  The  Guiod  v.  Guiod,  14  Cal.  506 ;  Cook  v. 
title  beiiiii  in  her,  the  possession  would  be  Klink,  8  Cal.  347  ;  Poole  v.  Gerrard,  6  ('al. 
hers  ifsucli  possession  were  deemed  nee-  71. 

essary  to  the  maintenanee  of  the  action.  ^  McCormick  v.  Penn.  Cent.  R.  R.,  49 

2  Barrett  v.  Tewksbury,  18  Cal.  334;  N.  Y.  303,  317. 


292  CIVIL    REMEDIES. 

but  their  propriety  lias  not  been  finally  determined.^  There  does 
not,  however,  seem  to  be  anj^  real  difficulty  in  principle.  If  a 
wife  is  clothed  with  full  authority  over  her  own  property  as 
though  she  Avas  unmarried,  and  if,  in  pursuance  thereof,  she  is 
permitted  to  invoke  the  aid  of  judicial  proceedings  in  enforcing 
contracts  against  her  husband,  and  in  recovering  from  him  the 
possession  of  lands  and  chattels,  there  can  be  no  valid  ground 
for  refusing  to  her  the  power  of  maintaining  actions  against  him 
for  the  wrongful  taking,  detention,  or  conversion  of  her  chattels, 
or  for  injuries  done  to  her  property  by  violence  or  by  negligence. 
Both  classes  of  actions  depend  upon  the  same  fundamental  rights, 
—  the  rigiits  of  property  which  the  statute  fully  confers  upon 
her.  If  the  owner  may  recover  from  her  husband  the  very  thing 
itself  —  the  land  or  chattel  —  in  a  real  action,  it  is  not  an  enlarge- 
ment of  her  power  to  suffer  her  to  recover  the  value  of  such 
things  wholly  or  partially  in  a,  jyersonal  action.  The  notion  that 
the  proceeding  must  be  equitable  is  a  remnant  of  the  ancient  sys- 
tem which  has  been  abrogated,  and  is  conceived  in  forgetfulness 
of  the  radical  changes  made  by  the  statutes  in  the  common-law 
theory  of  the  marriage  relation.  If  the  facts  constituting  the 
cause  of  action  are  stated  in  the  pleading,  it  is  both  unnecessary 
and  improper  to  call  the  action  equitable,  since  the  relief,  if  granted, 
is  the  ordinary  pecuniary  judgment  against  the  defendant  jaer- 
sonally,  and  not  a  judgment  in  rem  against  his  pro^jerty. 

§  24 tJ.  The  desertion  of  his  wife  and  family  by  the  husband 
does  not  increase  her  powers  and  capacities  in  reference  to  the 
bringing  and  maintaining  of  judicial  proceedings,  unless  provi- 
sion is  made  for  such  an  emergency  by  express  statute.     Thus, 

1  In  Owen  v.  Owen,  22  Iowa,  270,  the  Cole  .J.  said  (p.  468),  after  showing  that  the 
■wife  sued  lier  husband  to  recover  the  money  continut-d  to  be  the  property  of  the 
value  ot  certain  United  States  bonds,  her  husband  while  in  the  possession  of  the 
separate  property,  wrongfully  taken  by  wife,  and  that,  wlien  it  passed  into  the 
him  ami  converted  to  his  own  use.  The  possession  of  her  administrator,  he  might 
plainiilf  had  a  verdict  and  judgment  on  assert  his  own  right  to  its  possession, 
the  trial,  but  tiie  Supreme  Court  declined  "  which  is  then  for  the  first  time,  in  con- 
to  pass  ujjon  the  question  whether. such  temjilation  of  law,  denied,"  —  "If  the 
an  action  was  maintainable.  In  Davidson  money  was  actually  converted  to  her  own 
V.  Smith,  20  Iowa,  4tj6,  a  husband  was  use,  contrary  to  ins  will,  it  was  a  tort,  and 
permitted  to  recover  against  the  adminis-  not  a  contract,  and  such  a  tort  did  not 
trator  of  his  deceased  wife  the  amount  of  make  it  her  own,  and  uhi  Jus  ihi  remeiiium. 
certain  money  belonging  to  liimself  which  A  proceeding  to  secure  the  money  to  the  hus- 
she  had  unlawfully  taken  from  his  posses-  hand  in  the  lifetime  of  the  wife  would  neces- 
sion,  and  detained  until  her  death,  refusing  sarily  be  an  equitable  one." 
to  surrender  or  return  it  at  his  request. 


PLAINTIFFS   IN    EQUITABLE    ACTIONS.  293 

after  such  desertion,  the  wife  cannot  maintain  an  action  in  her 
own  name  to  set  aside  a  conveyance  of  hind  alleged  to  have  been 
obtained  from  him  by  fraud. ^  In  several  States,  however,  the 
codes  contain  express  provisions,  which,  in  case  of  desertion  by 
the  husband,  permit  the  Avife  to  prosecute  and  defend  such 
actions  as  he  might  have  done.^ 

§247.  Third :  Equitable  Actions.  The  grand  principle  which 
underlies  the  doctrine  of  equity  in  relation  to  parties,  is,  that 
every  judicial  controversy  should,  if  possible,  be  ended  in  one 
litigation ;  that  the  decree  pronounced  in  the  single  suit  should 
determine  all  rights,  interests,  and  claims,  should  ascertain  and 
define  all  conflicting  relations,  and  should  for  ever  settle  all 
questions  pertaining  to  the  subject-matter.  Since  the  chancery 
judges  were  not  hampered  by  the  legal  dogma  that  one  judg- 
ment must  be  rendered  alike  for  all  the  plaintiffs  and  against 
all  the  defendants  on  the  record,  they  were  enabled  to  adopt 
and  enforce  such  practical  rules  as  would  render  this  principle 
operative  and  efficient.  In  disclosing  these  rules,  and  in  ex- 
plaining their  application,  I  am  not  confined  to  decisions  made 
by  courts  professedly  governed  by  the  reformed  procedure. 
The  codes,  as  has  already  been  shown,  have  taken  the  most 
general  doctrines  of  equity  in  relation  to  parties,  have  put  them 
into  a  statutory  form,  and  have  made  them  aj)plicable  without 
exception  to  all  actions.  Whether  these  doctrines  have  been 
entirely  incorporated  into  the  legal  actions  under  the  codes  has 
sometimes  been  doubted ;  it  is  universally  admitted,  however, 
that  they  are  operative  with  their  full  force  and  effect  in  all 
equitable  actions  which  may  be  brought  in  accordance  with  the 
new  procedure.  For  the  purpose  of  ascertaining  the  existing 
rules  which  control  the  selection  of  parties  in  equitable  actions, 
we  are  not,  therefore,  restricted  to  those  States  which  have 
accepted  the  reform  ;  we  may  and  must  extend  our  inquiry  to 
England  and  to  other  States  of  this  country  wherever  equity 
exists  as  a  separate  division  of  the  municipal  law.  I  shall  en- 
deavor, in  a  very  condensed  and  summary  manner,  to  give 
the  doctrine  of  parties  plaintiff,  which  has  been  established  by 
courts  of  equity  and  in  equitable  actions,  whether  prior  or  subse- 
quent to  the  great  reform  introduced  into  so  many  of  the  States, 

1  Green  v.  Lyndes,  12  Wise.  404.  2  See  supra,  §  236. 


294  CIVIL   REMEDIES. 

and  the  result  will  express  the  law  as  it  now  exists  in  those 
States.^ 

§  248.  It  is  impossible  to  lay  down  with  precision  many  rules 
in  reference  to  plaintiffs,  because  equity  does  not  particularly 
concern  itself  with  determining  that  such  a  person  shall  be  a 
plaintiff  and  such  another  a  defendant,  but  rather  requires  in  a 
more  general  form  that  the  persons  shall  l)e  parties,  so  as  to  be 
bound  by  the  decree,  and  is  in  general  satisfied  if  they  are  thus 
brought  before  the  court  either  as  plaintiffs  or  as  defendants.  In 
other  words,  the  rules  of  equity  seldom  declare  that  a  given  per- 
son or  class  of  persons  must  be  plaintiffs,  but  simply  declare  that 
such  person  or  class  must  be  made  parties,  if  not  as  plaintiffs, 
then  as  defendants.^  The  result  is,  that  the  positive  rules  as 
announced  by  courts  and  as  gathered  from  a  comparison  of  deci- 
sions, are  much  more  full  and  explicit  in  reference  to  defendants 
than  they  are  in  reference  to  plaintiffs.  In  actual  practice,  all 
persons  having  an  interest  in  the  subject-matter,  and  therefore 
either  necessary  or  proper  parties,  except  the  actual  plaintiff  who 
institutes  and  prosecutes  the  suit,  are  generally  made  defendants, 
even  though  their  interests  may  be  concurrent  with  those  of  this 
plaintiff.  Still,  different  individuals  holding  different  rights  may 
be  united  as  plaintiffs  in  equitable  actions  ;  such  a  joinder  is  often 
provided  for  by  well-settled  doctrines,  and,  although  their  require- 
ment is  not  peremptory,  these  doctrines  must  be  discussed  and  fully 
stated.  The  persons  that  can  be  made  coplaintiffs  in  an  equity 
suit  may  be  roughly  separated  into  two  general  classes :  (1)  Those 
whose  rights,  claims,  and  interests,  as  against  the  defendant,  are 
joint,  —  not  necessarily  joint  in  the  strict,  technical  sense  of  the 
common  law,  but  in  a  broader  and  popular  sense, — that  is,  those 
whose  interests,  claims,  and  rights,  whether  legal  or  equitable, 
are  concurrent,  arising  out  of  the  same  events,  having  the  same 
general  nature,  and  entitled  to  the  same  sort  of  relief.  All  such 
persons  must  be  brought  before  tlie  court  as  parties,  and  natu- 
rally they  should  be  plaintiffs,  and  so  the  rules  primarily  require  ; 
but  the  requirement  is  by  no  means  peremptory,  and  in  many 
and  in  even  the  great  majority  of  instances,  the  equity  principle 

J  In   this   subdivision    I   have   drawn  American  editor,  and  liave  closely  followed 

very  larjrely   upon  the  fourth  American  that  most  admirable  work, 
edition  of  Daniell's  Chancery  Pleadings,  ^  See   Wilkins  v.   Fry,   1  Meriv.  244, 

and  the  learned  notes  of  Mr.  Perkins,  the  262. 


PLAINTIFFS    IN   EQUITABLE   ACTIONS.  295 

is  satisfied  if  all  but  the  one  who  actually  sets  the  cause  in 
motion  are  placed  among  the  defendants.  (2)  In  the  second 
class  are  found  all  those  persons  who  are  collaterally  interested 
in  the  subject-matter  of  the  controversy,  whose  interests  and 
claims,  although  antagonistic  to  the  defendant,  and  to  that  extent, 
therefore,  in  harmony  with  those  of  the  real  plaintiff,  are  still 
several  and  distinct  in  their  nature,  arising  from  different  facts 
and  circumstances,  and  demanding  perhaps  a  different  relief. 
Although  the  individuals  or  the  class  which  have  been  thus 
vaguely  described  may  be  joined  as  coplain tiffs  with  the  one  who 
is  the  chief  actor  in  the  suit,  and  although  the  rules  speak  of 
such  a  joinder  as  possible,  yet  in  actual  practice  they  are  almost 
invariably  placed  among  the  defendants.  With  this  preliminary 
explanation  which  modifies  the  entire  doctrine  of  equity  in  rela- 
tion to  plaintiffs,  I  shall  proceed  to  state  the  general  principles 
which  underlie  the  whole  equitable  system  of  parties,  and  to 
illustrate  the  working  of  these  principles  in  the  more  important 
species  and  varieties  of  actions  by  which  equitable  remedies  are 
conferred. 

§  249.  The  fundamental  principle  may  be  stated  as  follows  : 
The  plaintiff  who  institutes  an  equitable  action  must  bring  before 
the  court  all  those  persons  who  have  such  relations  to  the  subject- 
matter  of  the  controversy  that,  in  order  to  prevent  further  liti- 
gation by  them,  they  must  be  included  in  and  bound  by  the 
present  decree ;  in  other  words,  all  those  persons  who  are  so 
related  to  the  controversy  and  its  subject-matter,  that,  unless  thus 
concluded  by  the  decree,  they  might  set  up  some  future  claim, 
and  commence  some  future  litigation  growing  out  of  or  connected 
with  the  same  subject-matter,  against  the  defendant  who  is  pros- 
ecuted in  the  present  suit,  and  from  whom  the  relief  therein  is 
actually  obtained.  The  principle  as  thus  expressed  assumes, 
what  is  always  true  in  practice,  that  in  every  equitable  action  there 
is  some  person,  or  group  of  persons,  like  a  firm  or  joint  tenants,  who 
primarily  institutes  the  proceeding,  and  demands  the  relief  for  his 
own  benefit ;  and  him,  or  them,  we  may  designate  "  the  plain- 
tiff; "  and  there  is  also  some  person  or  group  of  persons  against 
whom  all  the  real  demands  are  made,  and  from  whom  the  sub- 
stantial remedy  sought  by  the  action  is  asked,  —  and  him  we 
denominate  "  the  defendant."  In  addition  to  these  two  con- 
testants, there  are  the  other  individuals  described  in  the  foregoing 


296  CIVIL   REMEDIES. 

proposition,  who  must  also  be  brought  before  the  court  and  made 
parties  to  the  controversy  either  as  coplaintiffs  or  as  codefendants. 
Equity  is  satisfied  in  most  instances  by  making  them  codefend- 
ants, and  they  are  generally  so  treated  in  actual  practice,  unless 
their  interests  are  so  identical  with  those  of  the  plaintiff  that  they 
must  participate  in  the  substantial  relief  awarded  by  the  decree. 
The  special  subject  of  our  present  inquiry  may  therefore  be  stated 
thus :  In  what  cases  and  under  what  circumstances  are  such  per- 
sons primarily  and  naturally  to  be  associated  as  coplaintiffs  rather 
than  as  codefendants?  The  answer  to  this  question  embodies 
the  principle  in  its  most  general  form  which  equity  courts  have 
applied  in  all  species  of  actions  to  determine  the  proper  joinder 
of  plaintiffs.  All  those  persons  whose  rights  and  interests  in  the 
subject-matter,  and  in  the  relief  demanded,  are  concurrent  with 
the  plaintiffs,  must  be  made  parties,  and  naturally  will  be  made 
coplaintiffs,  although  it  is  sufficient  in  most  instances  if  they  are 
brought  into  the  cause  as  codefendants.  The  principle  in  this 
very  general  form  is  too  vague  to  be  of  any  value  as  a  practical 
rule,  and  I  shall  therefore  take  up  in  order  the  most  important 
classes  of  cases  in  which  it  is  applied. 

§  250.  The  first  of  the  subordinate  general  principles  into 
which  the  foregoing  vague  doctrine  may  be  subdivided,  is  the 
following :  When  the  actual  plaintiff,  as  above  described,  has 
only  an  equitable  estate,  interest,  or  primary  right  in  the  subject- 
matter  of  the  suit,  the  person  who  holds  the  legal  estate,  inter- 
est, or  right  therein,  should  be  made  a  party,  and  primarily  a 
coplaintiff;  for,  without  such  joinder  the  defendant  might  be 
subjected  to  another  litigation  from  this  legal  owner  or  holder  of 
the  legal  title,  a  result  which  equity  strives  in  every  way  to  pre- 
vent.^ One  of  the  most  familiar  as  well  as  important  illustra- 
tions of  this  general  principle  is  the  rule  which  prevails  in  suits 
relating  to  trust  property.  When  property  is  held  in  trust,  and 
an  action  concerning  it  is  brought  by  the  beneficiary  or  person 
claiming  under  the  trust,  the  trustee,  or  one  in  whom  the  legal 
title  is  vested,  must  be  made  a  coplaintiff.^  As,  for  example,  when 
a  mortgage  has  been  given  to  a  trustee  in  trust  for  certain  bene- 

1  1  Daniell's,  p.  192.  land,  1  Paig;e,  20 ;  Cassiday  v.  McDaniel, 

2  1  Daniell's,  p.  193.  See  Western  8  B.  Mon.  619  ;  Covington,  &c.  R.  R.  v. 
R.  K.  i;.  Nolan,  48  N.  Y.  513;  Malin   v.     Bowlier's  Heirs,  9  Bush.  468. 

Malin,  2  Johns.  Ch.  238;  Fish  v.  How- 


PLAINTIFFS   IN    EQUITABLE   ACTIONS.  297 

ficiaries,  the  trustee  and  the  beneficiaries  must  unite  in  a  suit  to 
foreclose.^  The  principle  applies  to  all  cases  where  the  legal 
title  to  sue  stands  in  one,  and  the  l)eneficial  interest  in  the  sub- 
ject and  in  the  result  is  held  by  another  ;  both  must  unite  as  plain- 
tiffs. Thus,  if  a  covenant  is  made  with  a  trustee  for  the  benefit 
of  a  cestui  que  trusty  both  must  join  in  an  action  to  compel  a 
specific  performance."^  The  case  of  a  simple  contract,  made  by 
an  agent,  when  the  agency  appears  on  the  face  of  the  agreement, 
or  can  be  easily  established  by  extrinsic  evidence,  does  not  fall 
within  the  operation  of  this  rule,  for  the  principal  can  sue  alone 
and  prove  the  agency  if  it  is  disputed.  If,  however,  the  agency 
does  not  appear  in  the  contract  itself,  and  the  principal  or  person 
for  whom  the  agreement  is  made  cannot  prove  it  with  ease  and 
certainty,  then  the  agent  may  be  made  a  party  so  as  to  bind  his 
interest.^  When  an  agent  acts  in  any  transaction  on  his  own 
account  as  well  as  on  account  of  his  principal,  so  that  he  has  a 
beneficial  interest  in  the  subject-matter,  he  must  be  made  a 
coplaintiff  with  his  principal.* 

§  251.  The  case  of  suits  brought  by  the  assignees  of  things  in 
action  is  another  special  example  of  this  general  principle.  Where 
a  legal  thing  in  action  had  been  assigned,  the  assignee  was  per- 
mitted to  sue  in  equity  for  its  enforcement  in  his  own  name,  but 
the  assignor,  or  his  personal  representative  if  he  was  dead,  was 
an  indispensable  party,  if  not  as  a  coplaintiff,  then  as  a  defend- 
ant ;  otherwise  the  debtor  might  be  subjected  to  a  second  action 
at  law  in  the  name  of  the  assignor.^  This  particular  rule,  how- 
ever, as  has  been  shown  in  the  preceding  sections  of  the  present 
chapter,  has  been  entirely  abrogated  in  most  of  the  States  that 

1  Story  Eq.  PI.,  §§  201,  209;  "Wood  v.  which  prevailed  in  equity,  and  which  re- 
Williams,  4  Mad.  186  ;  Hichens  v.  Kelly,  quired  that  both  persons  should  join  in 
2  Sm.  &  G.  2()4.  bringing  the  action. 

2  Story  Eq.  PI.,  §  209;  Cope  v.  Parry,  *  Small  v.  Attwood,  1  Younge,  407. 

2  Jac.  &   Walk.   538.     See  McCotter  v.  5  i  Daniell's,  pp.  197-200,   and  cases 

Lawrence,  6  N.  Y.  Sup.  Ct.  392,  895.  there  cited.     Where  an   equitable  thing 

3  1  Daniell's,  p.  196 ;  Botsford  v.  Burr,  in  action,  or  an  equitable  interest,  was 
2  Johns.  Ch.  409;  Bartlett  i;.  Pickersgill,  assigned,  the  assignee  could  sue  alone, 
1  Cox,  15.  It  should  be  remembered  that  since  there  was  no  possible  danger  of  an 
when  a  contract  is  made  by  an  agent  in  action  at  law  by  the  assignor.  Padwick 
his  own  name,  expressly  for  the  benefit  v.  Piatt,  11  Beav.  503;  Bagshaw  v.  East- 
of  another,  he  is,  according  to  the  codes,  ern  Union  R.  Co.,  7  Hare,  114;  Blake  v. 
a  trustee  of  an  express  trust,  and  may  sue  Jones,  3  Anst.  651.  There  is  no  dilFerence, 
upon  it  in  liis  own  name,  witliout  joining  under  the  codes  generally,  between  the 
the  beneficiary  as  a  party.  To  this  extent  assignment  of  a  legal  and  of  an  equitable 
the  new  procedure  has  modified  the  rule  thing  in  action  in  respect  to  the  parties. 


298  CIVIL   REMEDIES. 

have  adopted  the  new  procedure,  since  their  codes  expressly  per- 
mit the  assignee  to  sue  alone  without  joining  the  assignor  either 
as  a  coplaintiff  or  as  a  defendant ;  but  it  is  substantially  retained 
by  the  codes  of  Kentucky  and  of  Indiana. 

§  252.  In  ordinary  suits  for  the  administration  of  the  estates  of 
deceased  persons  brought  by  creditors,  legatees,  or  distributees,  a 
general  personal  representative  of  the  estate  — an  administrator  or 
executor  —  is  indispensable,  and  is  a  necessar}''  party,  and  should 
properly  be  made  a  coplaintiff,  although  he  may  be  put  with  the 
defendants.^  These  ordinary  administration  suits,  which  are 
the  common  means  in  England  of  winding  up  and  settling 
the  estates  of  decedents,  are  practically  unknown  in  this  country. 
It  is  only  under  some  exceptional  circumstances  that  the  equity 
jurisdiction  is  with  us  invoked,  not  to  supersede  the  action  of 
the  probate  courts,  but  to  aid  it,  when  if  left  to  itself  it  would 
fail  to  afford  complete  relief  and  to  do  complete  justice.  When- 
ever such  exceptional  circumstances  exist,  and  by  reason  of 
fraud,  collusion,  or  other  similar  cause  on  the  part  of  the  execu- 
tor or  administrator,  a  creditor,  or  legatee,  or  distributee  of  an 
estate,  may  and  does  bring  an  action  on  behalf  of  the  estate,  even 
in  such  a  case  the  personal  representative  —  the  administrator  or 
executor  —  is  a  necessary  party ;  if  he  is  not  united  as  a  co- 
plaintiff,  he  must  be  added  as  a  defendant.^ 


'  1  Daniell's,  p.  201 ;  Penny  v.  Watts,  transferred  certain  personal  property  be- 

2   Phil,   149,  153;  Donald  v.  Bather,  16  longing  to  the  estate  to  a  person  who  was 

Beav.   26;    Croft  v.   Waterton,   13   Sim.  a  participant  in  the  fr.aud,  the  children  of 

653.  the  intestate,  wlio  were  his  only  ne.xt  of 

'  Attorney-General  v.  Wynne,  Mos.  kin,  united  in  an  action  against  the  ad- 
126  ;  Wilson  v.  Moore,  1  My.  &  K.  126,  ministrator  and  his  assignee  to  set  aside 
142  ;  Saunders  v.  Druce,  3  Drew.  140.  As  the  transfer,  and  for  a  delivery  up  of  the 
exaniplesofsuchactions.seeFisher  y.  Hub-  property  to  the  plaintiffs  by  the  assignee, 
bell,  7  Lans.  481  ;  65  Barb.  74  ;  1  N.  Y.  or  for  an  account  of  its  value  and  the 
Sup.  Ct.  97  ;  in  which  the  same  person  profits  resulting  from  its  use.  The  action 
was  e.xecutor  of  the  estates  of  A.  and  of  was  held  to  be  properly  brought.  Downer 
B.,  and  the  plaintiffs,  legatees  of  A.,  had  J.  said  (p.  133)  :  "  The  administrator  can- 
claims  which  placed  tliem  in  the  position  not  avoid  his  own  sale,  though  he  was 
of  creditors  to  the  estate  of  B. ;  and  Lan-  guilty  of  fraud  in  making  it.  If  he  dies, 
caster  v.  Gould,  46  Ind.  397,  which  was  or  is  removed,  and  an  administrator  de 
an  action  by  legatees  and  next  of  kin,  bonis  non  is  appointed,  the  latter  cannot 
against  a  creditor  of  the  estate  and  the  avoid  the  wrongful  sale  by  the  first  ad- 
executor,  to  set  aside  a  fraudulent  allow-  ministrator.  This  is  the  rule,  except 
ance  and  payment  of  a  claim  made  by  the  where  there  are  statutory  provisions  au- 
executor  to  the  creditor  ;  and  Stronach  v.  thorizing  the  administrator  dc  honis  non  to 
Stronach,  20  Wise.  129,  133.  An  admin-  do  what  otherwise  the  creditors,  legatees, 
istrator  having  fraudulently  assigned  and  or  distributees  alone  could  do.  .  .  .  Cred- 


PLAINTIFFS   IN    EQUITABLE    ACTIONS.  299 

§  253.  In  all  the  foregoing  instances  the  rule  has  been  applied 
to  the  holders  of  a  legal  and  of  an  equitable  estate  or  interest  in 
the  subject-matter  ;  it  extends  also  to  all  persons  having  legal 
demands  against  the  defendant  arising  out  of  the  same  subject- 
matter  or  event.  Thus,  where  a  lease  has  been  assigned  by  the 
lessee,  both  the  lessor  and  the  lessee  may  each  sue  the  assignee 
at  law  for  a  breach  by  him  of  the  covenants.  In  equity,  how- 
ever, neither  is  permitted  to  sue  the  assignee  without  joining  the 
other  also,  so  that  the  defendant  cannot  be  subjected  to  a  double 
action  and  recovery.^ 

§  254.  In  the  class  of  cases  thus  far  examined,  either  an  equi- 
table right  existed  in  one  person  and  a  legal  right  in  another,  or 
a  legal  right  was  held  by  all.  The  same  principle  extends  to  the 
very  numerous  class  of  cases  in  which  the  rights  against  the  de- 
fendant arising  from  the  same  subject-matter  or  event  are  all 
equitable.  Whenever,  therefore,  in  addition  to  the  plaintiff  who 
actually  institutes  the  action,  there  are  other  persons  having 
concurrent  equitable  rights  against  the  defendant  growing  out  of 
the  same  subject-matter,  they  should  in  general  be  made  parties 
to  the  action,  primarily  no  doubt  as  coplaintiffs,  but,  if  not,  then 
as  defendants.  The  doctrine  thus  stated  in  general  terms  has  a 
very  wide  application,  and  upon  it  are  based  a  very  large  portion 
of  the  special  rules  as  to  parties  which  prevail  in  equit)-.  It  in- 
cludes not  only  those  who  have  concurrent  rights  in  the  whole 
subject-matter  of  the  suit,  but  those  also  who  have  similar  rights 
in  a  part  of  it,  such  as  joint  tenants,  who  must  all  be  parties  in 
an  action  concerning  the  property.^  In  a  suit  by  joint  tenants  or 
tenants  in  common  for  a  partition,  all  must  be  before  the  court ; 
but  it  is  not  necessary  of  course  that  all  should  be  plaintiffs.^ 

itors,  legatees,  and  distributees  are  the  v.  Haycock,  2  Ch.  Cas.  124 ;  Weston  v. 

persons  who  have  a  right  to  bring  a  suit  Keigliley,    Finch,    82 ;    Stafford   v.    City 

in  sucii  a  case.     As  there  are  no  creditors  of  London,  1   P.  Wms.    428  ;  1   Stra.  95. 

or  legatees,  the  suit  was  rightfully  brought  Where  there   are  two  or  more  trustees, 

by  the  next  of  kin.    If  the  widow  is  one  of  they  must  all  unite,  since  their  interest  is 

the  distributees,  she  ought  to  be  a  party."  strictly  joint.     Thatcher  v.   Candee,   33 

See  also  Hills  i-.  Sherwood,  48  Cal.  386,  How.  Pr.  145  (N.  Y.  Ct.  of  App.). 

392  ;  Haynes  v.  Harris,  33  Iowa,  516,  518-  ^  Anon.,  3  Swanst.  139  ;  Brashear  v. 

520.  Macey,  3  J.  J.  Marsh.  93  ;  Braker  v.  Dev- 

i  1  Daniell's,  pp.  206,  207;  Sainstry  n.  ereaux,  8  Paige,  513;  Borah  v.  Archers, 

Grammer,  2  Eq.  Cas.  Abr.  165 ;  City  of  7  Dana,  176 ;  Cornish  v.  Gest,  2  Cox,  27. 

London   v.   Richmond,   2   Vern.   421;    1  In  partition  by  a  tenant  in  common,  his 

Bro.  P.  C.  516.  wife  is  not  a  necessary   coplaintiff;    she 

^  1  Daniell's,  pp.  207,  208 ;  Haycock  should  be  made  a  party  to  the  action,  but 


300  CIVIL   REMEDIES. 

There  have  been  relaxations  of  this  general  rule.  An  action  by 
three  out  of  forty-seven  tenants  in  common,  brought  to  restrain  the 
defendants  from  quarrying  stone  upon  the  land  which  was  owned 
in  common  by  the  whole  number,  has  been  sustained,  notwith- 
standing an  objection  on  the  ground  of  the  non-joinder  was 
interposed.'  And  where  one  tenant  in  common  had  leased  his 
share  for  a  long  period  of  j^ears,  the  lessee  was  permitted  to 
maintain  a  partition  against  the  other  tenants  in  common,  without 
making  the  reversioner  of  his  own  share  —  the  lessor  —  a  party .^ 
And  generally  a  tenant  for  life  may  institute  a  partition  without 
bringing  in  the  remainder-men.^  When  land  is  held  by  tenants 
in  common  for  life,  or  when  there  are  future  contingent  interests 
which  may  finally  vest  in  persons  not  yet  in  being,  a  partition 
ma}'-  be  had  between  those  who  possess  the  present  estates  ;  but 
it  will  only  be  binding  upon  the  parties  who  are  before  the  court 
and  those  who  are  virtually  represented  by  such  parties.^  In  an 
action  brought  to  determine  boundaries,  all  persons  interested, 
whether  their  estates  are  present  or  future,  remainder-men  and 
reversioners,  must  be  parties,  although  of  course  all  need  not  be 
plaintiffs.^  It  is  not  necessary,  as  a  general  rule,  to  make  the 
actual  occupying  tenants  or  lessees  parties  in  suits  relating  to 
real  property.  They  must,  however,  be  parties  in  special  cases 
where  they  are  directly  interested  and  their  concurrence  is 
necessary ;  as,  for  example,  in  a  partition  suit  where  a  tenant  in 
common  has  leased  his  share,  and  in  a  suit  brought  to  restrain  an 
ejectment  which  was  instituted  against  the  tenants  themselves 
instead  of  against  their  lessor.^  If,  on  the  other  hand,  lessees,  or 
any  persons  holding  limited  interests,  sue  to  establish  some  gen- 
eral right,  that  is,  some  right  belonging  to  or  affecting  the  whole 
estate  and  not  merely  their  own  temporary  possession  and  user, 

rather  as  a  defemlant  than  as  a  plaintiff.  140;  Striker  v.  Mott,  2  Paige,  387,  389; 

Rosekrans  v.  Wliite,  7  Lans.  486.     The  Woodvvorth  v.    Campbell,  5  Paige,  518; 

administrator    of   a   deceased   tenant   in  Gaskell  v.  Gaskell,  6  Sim.  643. 
common     may,    under     certain    circuni-  *  1  Daniell's,  p.  209 ;    Story   Eq.  PI. 

stances,  be  a  proper  party,  together  with  §  165;    Bayley  v.   Best,   1   Russ.  &  My. 

his  heirs,  in  a  partition.     Scott  v.  Guern-  6.59  ;  Miller  v.  Warmington,  1  Jac.  &  Walk, 

sey,  GO  Barb.  163,  181.  484;    Speer   v.   Crawter,  2  Meriv.    410; 

i  Ackroyd  (•.  Briggs,  14  W.  R.  25.  Attorney-General  v.  Stephens,  1  K.  &  J. 

2  Baring  v.  Nash,   1   Ves.  &  B.  551;  724;  6  DeG.,  M.  &  G.  Ill;  Pope  v.  Me- 
Heaton  >'.  Dearden,  16  Beav.  147.  lone,  2  A.  K.  Marsh.  239. 

3  VVillsr.  Slade,6  Ves.498;  Brassey  w.  °  1  Daniell's,  p.  209;    Story  Eq.  PI. 
Chalmers,  4  DeG.,  M.  &  G.  528.  §  151 ;  Lawley  v.  Walden,  3  Swanst.  142; 

*  Wotten  V.   Copeland,  7  Johns.  Ch.     Poole  v.  Marsh,  8  Sim.  528. 


PLAINTIFFS   IN   EQUITABLE   ACTIONS.  301 

the  ultimate  owners  of  the  inheritance  must  also  be  made  parties, 
so  that  they  may  be  bound  by  the  decree,  but  the  requirement 
will  be  satisfied  by  making  them  defendants/  Thus,  where  a 
lessee  brought  an  action  to  establish  a  right  of  way  against  a 
person  who  had  erected  an  obstruction,  it  was  held  that  his  lessor 
should  have  been  joined  as  a  party  to  the  suit.^ 

§  2r)5.  The  doctrine  that  persons  having  or  claiming  a  joint 
interest  or  estate  must  unite,  extends  to  actions  which  relate  to 
personal  property  as  well  as  to  those  which  relate  to  real  prop- 
erty.^ The  following  particular  instances  will  illustrate  this 
application.  If  a  legacy  is  given  to  two  jointly,  both  must  sue 
for  it  ;  but  if  legacies  are  given  separately,  there  being  no  com- 
mon interest  in  any  particular  one,  each  legatee  may  sue  for  his 
own.'*  Where  two  or  more  persons  are  jointl}^  interested  in  the 
money  secured  by  a  mortgage,  that  is,  according  to  the  law  pre- 
vailing in  this  country,  when  they  are  joint  mortgagees  or  joint 
assignees  of  a  mortgage,  they  must  all  unite  in  a  foreclosure." 
And  it  is  not  even  necessary  that  they  should  be  joint  holders  of 
the  debt  secured  by  the  mortgage.  All  persons  who  are  entitled 
to  share  in  the  proceeds,  whether  their  interest  is  joint  or  in 
common,  or  several,  must  be  made  coplaintiff's,  or  at  least  must 
be  brought  into  the  action  as  defendants."  When,  however,  the 
mortgage  has  been  assigned  to  trustees  in  trust  for  the  benefit  of 
creditors,  the  trustees  are  the  only  necessary  parties  plaintiff  in  a 
foreclosure  suit,  and  the  creditors  being  represented  by  them 
need  not  be  joined.'  Actions  to  foreclose  mortgages  upon  land, 
and  those  to  enforce  and  foreclose  the  vendor's  lien  uj)on  land 
for  the  purchase  price  thereof,  are  in  all  respects  based  upon  the 
same  principles.     The  equitable  doctrine  prevailing  in  by  far  the 

1  1  Daniell's,  pp.  209,  210.  6  gtory   Eq.    PI.,    §   201 ;    Gootlall   v. 

2  Poore  V.  Clarke,  2  Atk.  515.  Mopley,  45  Ind.  355,  358.  In  tliis  case  a 
•*  1  Daniell's,  p.  211.  mortgage  had  been  executed  to  several 
*  Haycock   v.    Haycock,   2    Ch.  Cas.     different  mortgagees.     All  but  one  joined 

124;  Hughsen  v.  Cookson,  3  Y.  &  C.  578.  in  a  foreclosure,  and  lie  was  afterwards 

s  Story  Eq.   PI  ,   §    201  ;    Stucker    v.  permitted  to  foreclose  for  his  own  behalf, 

Stucker,  3  J.  J.    Marsh.  301 ;    Wing  v.  making  the  other  mortgagees,  as  well  as 

Davis,  7  Greenl.  31  ;  Noyes  v.  Sawyer,  3  all  other  persons  interested,  defendants. 

Vt.  160;  Woodward  f.  Wood,  19  Ala.  213;  See, /lec  contra,  Montgomerie  v.   Marquis 

Palmer  v.  Earl  of  Carlisle,  1  S.  &  S.  423  ;  of  Bath,  3  Ves.  660,  —a  case   which  has 

Lowe  V.  Morgan,  1  Bro.  C.  C.  368 ;  Stans-  been  severely  criticised, 
field  V.  Hobson,  16  Beav.  189.     For  an  ex-         '  Morley   i'.    Morley,   25  Beav.   253  ; 

ample  of  misjoinder,  because  there  was  no  Thomas  v.  Dunning,  5  DeG.  &  S.  618; 

community  of  interest,  see  Ferris  v.  Dick-  Knight  v.  Pocock,  24  Beav.  436. 
erson,  47  Ind.  382. 


302  CIVIL   REMEDIES. 

greater  part  of  the  States,  and  which  has  entirely  displaced  the 
legal  notion,  regards  the  debt  as  the  essential  fact,  and  the  mort- 
gage as  a  mere  incident  thereto.  The  holder  of  the  mortgage 
has  therefore  no  estate  in  the  mortgaged  premises.  Whoever  is 
interested  in  the  debt  as  one  of  the  creditors,  is  therefore  inter- 
ested in  the  mortgage  or  in  the  vendor's  lien,  and,  npon  the  well- 
settled  rules  of  equity  procedure,  all  must  be  made  parties  in 
order  to  avoid  a  division  of  the  claim  and  a  multiplicity  of 
actions.  In  the  western  States  it  is  very  common,  on  the  sale  of 
land,  for  the  vendor  to  take  the  vendee's  notes  payable  at  suc- 
cessive dates  for  the  price,  and  either  to  receive  back  a  mortgage 
given  to  secure  such  notes,  or  to  rely  upon  the  equitable  lien 
arising  from  the  sale  as  the  security.  All  the  holders  of  such 
notes  must  join  as  plaintiffs  in  an  action  to  foreclose,  whether  the 
security  be  a  mortgage  or  the  mere  vendor's  lien.^  A  note  and 
mortgage  having  been  given  to  a  husband  and  Avife  as  security 
for  money  of  the  wife  loaned  to  the  mortgagor,  and  the  husband 
dying,  the  wife  was  held  to  be  the  proper  party  to  sue  in  her 
own  name,  either  as  the  surviving  i:)romisee  and  mortgagee,  or 
because  the  contract  concerned  her  separate  estate.^ 

§  256.  The  rule  which  regulates  actions  to  foreclose,  prevails 
also  in  those  brought  to  redeem.  As  all  the  persons  entitled  to 
share  in  the  mortgage  debt  must  unite  in  a  foreclosure  suit,  so  in 
a  suit  to  redeem,  the  mortgagor,  and  all  others  who  have  a  com- 
mon right  with  him  to  redeem,  must  be  made  parties ;  in  strict 
theory  they  should  be  coplaintiffs,  but  it  is  sufficient  if  the  one 

1  Pettibone  v.  Edwards,  15  Wise.  95;  necessary  parties.  As  the  debt  due  for 
Jenkins  v.  Smith,  4  Mete.  (Ky.)  380;  the  purchase  price  is  a  personal  asset,  it 
Merritt  v.  Wells,  18  Ind.  171 ;  Goodall  v.  belongs  to  the  personal  estate,  and  falls 
Mopley,  45  Ind.  355,  358.  See,  however,  within  the  exclusive  control  of  the  ad- 
Rankin  v.  Major,  9  Iowa,  297.  Upon  the  ministrator.  Any  proceeding  to  enforce 
death  of  a  vendor,  it  is  held,  in  Kentucky,  its  collection,  it  would  seem,  should  be 
that  his  heirs  must  be  joined  as  phiintitTs  .  instituted  by  the  administrator  alone.  In 
in  a  suit  to  enforce  the  lien  for  purchase-  North  Carolina,  the  English  doctrine  as 
money,  tliat  tlie  administrator  cannot  to  mortgages  still  prevails,  and,  upon  the 
maintain  the  action  alone.  Anderson  v.  death  of  tiie  mortgagee,  his  heirs  must, 
Sutton,  2  Duv.  480,  486  ;  Smith  v.  West's  in  general,  be  parties  to  the  foreclosure, 
Executors,  5  Litt.  48 ;  Edwards  r.  Bohan-  altiiougli  there  are  some  exceptions,  as 
non,  2  Dana,  98;  Thornton  v.  Knox's  when  they  are  non-residents,  and  have 
Executors,  6  B.  Mon.  74.  This  ruling  simply  the  dry  legal  title  without  any 
must,  I  think,  be  confined  to  the  ease  of  bencticial  interest,  the  mortgage  having 
a  contract  to  sell,  where  the  legal  title  been  assigned  by  the  mortgagee.  Ether- 
remains  in  the  heirs  and  they  must  con-  idge  v.  Vernoy,  71  N.  C.  184,  185,  187. 
vey  to  the  vendee.  If  the  land  has  al-  '^  Shockley  v.  Shockley,  20  Ind.  108. 
ready  been  conveyed,  the  heirs  cannot  be 


PLAINTIFFS    IN    EQUITABLE    ACTIONS.  303 

who  for  liis  own  purposes  institutes  the  action  adds  the  others 
as  defendants. 1  Where  a  judgment  of  foreclosure  had  been 
obtained  on  a  mortgage,  and,  witli  the  authority  or  knowledge  of 
the  mortgagee,  the  sheriff  sold  the  premises  in  the  usual  manner, 
but  at  a  merely  nominal  price,  it  was  held,  in  Indiana,  that  the 
mortgagor  and  the  mortgagee  might  unite  in  an  action  to  set  the 
sale  aside,  and  to  redeem  the  land  from  the  purchaser,  —  the  mort- 
gagor by  virtue  of  his  ownership,  and  the  mortgagee  by  virtue  of 
his  interest  in  having  a  price  produced  at  the  sale  large  enough  to 
pay  his  entire  claim  .^  The  general  doctrine  above  stated  is 
strictly  enforced  in  redemption  suits  of  all  varieties,  the  under- 
lying principle  being' that  a  redemption  must  be  complete  and 
total,  that  the  creditor  shall  not  be  compelled  to  accept  a  partial 
payment  of  his  claim,  or  to  make  a  partial  surrender  of  his 
securities.  When  two  tracts  of  land  are  mortgaged  to  the  same 
person  to  secure  the  same  debt,  and  they  afterwards  come  into 
the  hands  of  different  proprietors,  one  of  them  cannot  be  redeemed 
without  the  other  ;  the  owners  of  both  the  parcels,  and  all  per- 
sons interested  in  them,  must  be  parties  to  the  action,  if  not  all 
as  plaintiffs,  then  at  least  as  defendants.^  This  joinder  of  the 
persons  interested  in  the  two  estates  is  only  necessary,  however, 
while  the  mortgages  are  held  by  the  same  mortgagee  or  other 
holder.  If  one  of  them  is  assigned,  or  if  by  any  other  means 
they  come  into  the  hands  of  different  holders,  they  being  on  dis- 
tinct parcels  of  land,  all  connection  between  them  is  severed,  and 
the  actions  to  redeem  must  be  separate.^  If  the  action  to  redeem 
is  brought  by  an  incumbrancer,  the  same  rule  applies.  In  a  suit 
by  an  incumbrancer,  who  seeks  to  redeem  from  a  prior  incum- 
brance, the  mortgagor  or  owner  of  the  land  subject  to  the  incum- 
brances, whatever  they  may  be,  is  an  indispensable  party,  although 
not  necessarily  a  plaintiff.^     While  a  second  mortgagee,  in  an 

1  1  Daniell's,  pp.  212,  213  ;  Story  Eq.  1,  134  ;  Ireson  v.  Denn,  2  Cox,  425;  Jones 
PI.,  §  201;  Chapman?;.  Hunt,  1  McCarter,  y-  Smith,  2  Yes.  372;  6  Ves.  229  (n.); 
149;  Large  v.  Van  Doren,  1  Mc Carter,  Watts  y.  Symes,  1  DeG.,  M.  &  G.  240; 
208.  Tassell  v.  Smith,  2  DeG.  &  J.  713  ;  Vint 

2  Berkshire  v.  Shultz,  25  Ind.  523.  v.  Padget,  2  DeG.  &  J.  Gil;  Selby  v. 
See  also  McCuIloch's  Administrator  v.  Pomfret,  1  J.  &  H.  336;  3  DeG.,  F.  &  J. 
Holiingsworth,  27  Ind.   115;  Stringfield,  595;  Bailey  i'.  Myrick,  36  Me.  50. 

V.  Graff,  22  Iowa,  438.  *  Willie  v.  Lugg,  2  Eden,  78. 

3  Story  Eq.  PI.,  §§  182,  287;  Palk  v.  ^  1  Daniell's,  p.  214;  Story  Eq.  PI., 
Lord  Clinton,  12  Ves.  48;  Lord  Choi-  §§  84,  186,  195;  Thomson  v.  Basker- 
mondeley  v.  Lord   Clinton,  2  Jac.  &  W.  vill,  3  Ch.  Rep.  215;  Farmer  v.  Curtis, 


304  '     CIVIL   REMEDIES. 

action  to  redeem,  must  thus  bring  in  the  mortgagor  or  liis  heir  or 
other  owner  of  the  hind,  he  may  foreclose  the  mortgagor  and  a 
third  mortgagee  without  joining  the  first  mortgagee  as  a  party, 
since  his  proceeding  does  not  in  the  least  affect  the  rights  of  such 
first  mortgagee,  but  its  effect  is  merely  to  put  himself  in  the 
place  of  the  mortgagor  and  of  the  third  mortgagee.^  This  rule 
may  be  stated  in  a  more  general  form.  In  suits  brought  to  enforce 
subsequent  claims,  interests,  or  incumbrances,  on  property  sub- 
ject to  prior  charges  which  are  to  be  left  unaffected,  the  holders 
of  such  prior  liens  or  interests  need  not  be  made  parties.^ 

§  257.  The  general  principle  that  all  persons  concurrently 
interested  in  the  subject-matter  of  the  suit  or  in  its  result, 
whether  that  relate  to  real  or  to  personal  property,  must  be  par- 
ties, is  invoked  and  strictly  enforced  in  all  species  of  actions 
which  are  brought  to  obtain  an  accounting  against  the  defendant. 
The  remedy  of  accounting  is  multiform,  and  it  is  often  made  the 
basis  of  some  further  and  ulterior  relief,  such  as  rescission  and 
cancellation,  redemption,  and  the  like  ;  but  wherever  an  account- 
ing is  sought,  either  for  its  own  sake  or  as  the  preliminary  step  to 
further  judicial  action,  the  rules  as  to  parties  are  controlling. 
When  several  persons  are  interested  in  having  an  account  taken, 
or  in  its  result,  one  of  them  cannot  be  permitted  to  institute  a 
proceeding  for  that  purpose  by  himself  alone  and  without  joining 
the  others  in  some  manner,  so  that  they  shall  be  bound  by  the 
decree,  for  otherwise  the  defendant  would  be  exposed  to  as  many 
actions  as  there  are  persons  interested,  each  brought  and  main- 
tained for  the  same  purpose  and  upon  substantially  the  same 
proofs.^  The  actions  in  which  an  accounting  is  necessary  are 
very  numerous,  and  arise  out  of  external  circumstances  very 
unlike,  but,  in  all  of  them,  the  rule  as  thus  stated  must  be  fol- 
lowed in  the  selection  of  the  parties.  Thus  in  a  partnership,  or 
any  other  like  adventure  where  there  is  a  sharing  of  profits  or 

2  Sim.  466 ;  Hunter  v.  Macklew,  5  Hare,  231 ;  Wright  v.  Bunrly,  11  Ind.  398.     In 

238;  Fell   v.  Brown,  2  Bro.  C.    C  .  276 ;  Englanil,  if  tlie  plaintiff"  in  sucii  an  action 

Palk  c.  Lord  Clinton,  12  Ves.  48;  Hallock  brings  in  tlie  prior  mortgagee,  he  must 

V.  Sniitli,4  Jolins.  Ch.  649.  offer  to  redeem  liis  mortgage.     Gordon  v. 

i  1    Daniell's,  p.  214  ;  Story  Eq.  PI.,  Horsfall,  5  Moore,  393. 
§  193  ;  Rose  v.  Page,  2  Sim.  471 ;  Brii>coe  -  1  Daniell's,  p.  214  ;  Rose  v.  Page,  2 

V.    Kenrick,   1   Coop.    temp.    Cott.    371;  Sim.  471  ;  Parker  v.  Fuller,  1  R.   &  M. 

Arnold  i-.  Bainijrigge,  2  DeG,,  F.  &  J.  92  ;  656. 

Audsley  v.  Horn,  26  Beav.  19.5;  1  DeG.,         3  i  Daniell's,  p.  216  ;  Petrie  v.  Petrie, 

F.  &  J.  226 ;  Person  v.  Merrick,  5  Wise.  7  Lans.  90. 


PLAINTIFFS    IN    EQUITABLE    ACTIONS.  305 

losses,  all  the  persons  having  shaves  must  be  made  parties  to  a 
suit  brought  for  an  accounting. ^  Under  the  proper  circumstances 
one  may  sometimes  sue  on  behalf  of  himself  and  all  the  others 
interested,  and  it  is  not  indispensable  that  the  individuals  having 
concurrent  rights  should  all  be  joined  as  plaintiffs  in  tlie  action .^ 
If,  however,  one  or  more  of  the  parties  are  non-residents,  and 
beyond  the  jurisdiction  of  the  court,  the  rule,  under  such  circum- 
stances, is  sometimes  relaxed,  and  the  action  is  allowed  to  pro- 
ceed with  those  parties  who  are  within  the  reach  of  the  court  and 
its  process.  The  admission  of  this  exception,  or  of  similar  ones, 
is  not,  however,  a  matter  of  absolute  right ;  it  depends  rather 
upon  the  sound  discretion  of  the  court  regulated  b}^  considera- 
tions of  equity  and  justice.^  The  heirs  of  a  deceased  partner 
must  be  parties  in  an  action  brought  to  sell  real  estate  of  the 
firm  in  winding  up  the  partnership  and  paying  the  firm  debts ; 
although  the  land  is,  for  the  purpose  of  paying  firm  debts,  treated 
in  equity  as  a  personal  asset,  yet  the  legal  title  of  the  heir  must 
be  divested,  and  to  that  end  he  must  be  brought  in  as  a  party.* 
On  the  death  of  a  partner,  his  personal  representative  may  at 
once  maintain  an  action  against  the  survivors  for  an  accounting; 
and  when  there  was  no  real  estate  held  by  the  firm  as  a  part  of 
its  assets,  so  that  no  question  can  arise  as  to  the  title  of  any 
lands,  the  heirs  of  the  deceased  are  neither  necessary  nor  proper 
parties  to  such  action.^ 

§  258.  Another  example  is  found  in  the  action  by  a  residuary 
legatee  brought  to  obtain  an  account  of  his  share  of  the  residue  ; 
he  must  make  all  persons  interested  in  the  residue  parties, 
even  though  their  interest  may  be  quite  remote  and  contin- 
gent.*^    One  residuary  legatee  may  sometimes  sue  on  behalf  of 

1  Ireton   v.  Lewes,  Fincli,  96  ;  Moffat  Rokes,  53  Me   110,  116  ;  Fuller  v.  Benja- 

V.  Fiirquharson,  2  Bro.  C.  C.  338.  min,  28  Me.  255. 

-  Story  Eq.  PI.,  §  166 ;  Good  v.  Ble-         *  Pugh  v.  Currie,  5  Ala.  446  ;  Lang  v. 

witt,   13  Yes.   397;    Cullen   v.   Duke   of  Waring,  25  Ala.  625;  Andrews  r.  Brown, 

Queensberry,  1  Bro.   C.  C.  101 ;  Hills  v.  21  Ala.  437. 

Nash,  1  Phila.  594  ;  Wells  v.  Strange,  5         ^  Cheeseman  v.  Wiggins,  1  N.  Y.  Sup. 

Geo.  22  ;  ]Mudgett  v.  Gager,  52  Me.  541.  Ct.  595. 

3  Tlie   following    cases   will   show   to         ^1  Daniell's,  pp.  216,  217 ;  Story  Eq. 

what   extent,   and   under    what   cireura-  PI.,  §§  89,  203,  204 ;  Parsons  v.  Neville,  3 

stances,  the  rule  has  been  relaxed  :  Story  Bro.  C.  C.  365 ;  Cockburn  v.  Tliompson, 

Eq.  PI.,  §  78  ;  Darwent  v.  AValton,  2  Atk.  16  Ves.  328  ;  Brown  v.  Ricketts,  3  Johns. 

510;    Walley   v.   Walley,   1   Vern.  487;  Ch.  553;  Davoue  v.  Fanning,  4  Johns. 

Towle  V.  Pierce,  12  Mete.  329;  Vose  v.  Ch.    199;    Pritchard  v.  Hicks,   1  Paige, 

Philbrook,   3   Story,   335 ;    Lawrence    v.  270 ;    Sheppard  v.  Starke,   3  Munf.  29 ; 

20 


306  CIVIL    REMEDIES. 

all  others  interested.^  Also  in  a  suit  by  next  of  kin  or  distrib- 
utees against  the  administrator  for  an  account,  all  of  the  next  of 
kin  or  distributees  must  be  parties,  naturally  as  plaintiffs,  but  if 
not,  then  as  defendants.  This  is  the  established  equity  rule  prior 
to  or  independent  of  any  changes  made  by  statutes.-  These 
instances  of  distributees  and  residuary  legatees  thus  given  are  in 
fact  particular  cases  of  a  more  general  rule  in  reference  to  actions 
which  have  for  their  object,  in  whole  or  in  pai't,  an  accounting  by 
the  defendant,  which  may  be  stated  as  follows :  When  the  per- 
sons assert  the  claim  to  an  account  as  a  portion  of  a  class  entitled 
under  a  general  description,  all  the  members  of  that  class,  or  all 
the  individuals  included  under  that  general  description,  must  be 
before  the  court ;  if  not  among  the  original  parties  to  the  suit, 
they  must  be  brought  in  before  the  final  hearing,  so  that  the 
rights  of  the  entire  bod}'  can  be  determined  in  one  decree,  and 
the  defendant  relieved  from  the  possibility  of  a  multiplicity  of 
actions.  Primarily,  all  these  persons  being  interested  in  the 
account  adversely  to  the  defendant,  they  should  all  be  macTe 
coplaintiffs  ;  but,  as  has  often  been  obsei'ved,  the  rules  of  ec[uity 
do  not  demand  this  strict  distinction  between  plaintiffs  and 
defendants,  and  they  are  satisfied  if  all  the  individuals,  besides 
the  one  actually  instituting  the  suit,  are  placed  among  the  defend- 
ants. It  is  also  often  possible,  when  the  class  is  numerous,  that 
one  should  sue  on  behalf  of  all  the  others.     This  general  rule  is 


West  V.  Eandall,  2  Mason,  181,  190-199  ;  v.  Collins,  4  J.  J.  Marsh.  50.     See  Petrie 

Huson    V.    McKenzie,    Dev.     Eq.    463 ;  v.  Petrie,  7  Lans.  90.     Wliere  land  and 

Arendcll    v.    Blackwell,   Dev.    Eq.    354  ;  personal  property  liad  been  conveyed  to 

Bethel  v.  Wilson,  1  Dev.  &  Bat.  Eq.  610.  a  trustee  upon  certain  trusts  for  a  benefi- 

As  illustrations  of  such  remote  and  con-  ciary,  and   the  trustee  had  died,  and  all 

tingeiit  interests,  see  Slierrit  v.  Birch,  3  his  estate,  including  the  trust-estate,  had 

Bro.    C.    C.    229    (Perkins's  ed.,  note);  been  distributed  to  his  heirs  and  next  of 

Davies  v.  Davies,  11   Eng.   L.  &  Eq.  R.  kin,  and  the  beneficiarj^  had  also  died,  an 

199;    Lenaghan    v.  Smith,  2  Phil.   301;  action  was  held  properly  brought  by  the 

Smith   V.    Snow,    3    Mad.    10;    Hares   r.  administrator  and  heirs-at-law  of  tiie  latter 

Stringer,  15  Beav.  206 ;  Grace  v.  Terring-  against  the  heirs  and  next  of  kin  of  the 

ton,  1  Coll.  3.  deceased  trustee  for  an  accounting  and 

1  Kettle  V.  Crarj',  1  Paige,  417,  419,  settlement  of  the  trust,  a  payment  of  the 
420;  Ross  v.  Crary,  1  Paige,  416;  Hal-  personal  property,  and  a  conveyance  of 
lett  i^  Hailett,  2  Paige,  15,  19;  Egberts  v.  the  land  ;  the  administrator  was  properly 
Woods,  3  Paige,  517.  made  a  plaintiff,  because  he  represented 

2  1  Daniell's,  pp.  217,  218;  Story  Eq.  the  personal  estate  of  the  beneficiary  ;  and 
PI.,  §  89;  Hawkins  v.  Hawkins,  1  Hare,  the  heirs,  because  they  succeeded  to  his 
543,546;  Poland  c.  Turner,  5  J.  J.  Marsh,  real  estate.  Richtmyer  v.  Richtmyer, 
179:  West  v.  Randall,  2  Mason,  181,  190;  50  Barb.  55. 

J^ellar  v.  Beelor,  5  Monr.  573;   Oldham 


PLAINTIFFS    IN    EQUITABLE    ACTIONS.  307 

most  comprehensive  in  its  practical  application,  and  must  be 
invoked  in  a  very  large  number  of  cases  which  have  little  exter- 
nal resemblance  ;  it  was  well  established  both  in  England  and  in 
this  country  as  a  doctrine  of  equity  procedure,  but  has  of  late 
years  been  much  modified  and  relaxed  in  England  by  statutes. ^ 

§  259.  There  are  some  exceptions,  however,  to  the  foregoing 
rule  which  requires  all  peisons  interested  in  the  result  of  an 
accounting  to  be  made  parties.  When  some  of  the  individuals 
who  were  originally  interested  have  been  already  separately 
accounted  with  and  paid,  they  need  not  be  made  parties  to  the 
suit.2  And  when  the  accounts  and  shares  of  the  different  per- 
sons have  been  kept  entirely  separate  and  distinct  from  each 
other,  so  that  neither  one  is  interested  in  that  of  the  others, 
although  all  relate  to  the  same  adventure  or  undertaking,  there 
need  be  no  joinder  of  all.^  And  where  persons  are  each  entitled 
to  a  certain  fixed  portion  of  an  ascertained  sum  in  the  hands  of  a 
trustee,  each  may  sue  for  his  own  share  without  joining  his 
co-beneficiaries.^  The  distinction  here  referred  to  is  important, 
and  should  be  stated  more  fully,  as  follows :  If  a  trustee  holds  a 
fund  which  he  is  bound  to  distribute  to  different  beneficiaries  in 
unequal  proportions,  and  the  proportionate  share  of  each  has  not 
yet  been  ascertained,  all  the  persons  who  are  interested  in  the 
distribution  are  necessary  parties  to  an  action  brought  to  enforce 
the  trust ;  but  where  the  proportionate  share  of  each  beneficiary 
has  been  definitively  ascertained  by  a  proceeding  binding  on  the 
trustee,  each  is  entitled  to  demand  payment  of  the  share  belong- 
ing to  himself,  and  when  the  payment  is  withheld  he  may  main- 
tain a  separate  action  for  its  recovery.  The  liability  of  the 
trustee  to  each  is  then  exactly  the  same  as  though  the  sum 
ascertained  to  belong  to  him  was  the  only  sum  which  the  trustee 
had  received  and  had  been  directed  to  pay.^     When  a  person 

I  See  1  Daniell's,  p.  217;  Story   Eq.  §§  201a,  212;  Perry   v.  Knott,  5  Beav. 

PI.,  §  90.     See  Baptist  Church  v.  Presby-  293  ;  Smith  v.  Snow,  3  Mad.  10  ;  Hares  v. 

terian  Church,  18  B.  Mon.  635;  Hutchin-  Stringer,    15    Beav.   206;    Lenaghan    v. 

son  V.  Boberts,  67  N.  C.  223.  Smith,  2  Phil.  801 ;  Hunt  v.  Peacock,  6 

2D'Wolf    V.    D'Wolf,   4    R.   I.   450;  Hare,  361. 
Branch  t;.  Booker,  3  Munf.  43 ;  Moore  r.  ^  Gen.   Mut.   Ins.    Co.   v.   Benson,    5 

Beauchamp,  5  Dana,  70  Duer,  168,  176,  per  Duer  J.  ;  Walker  v. 

3  Weymouth   v.  Boyer,    1    Ves.   416;  Paul,    Stanton's   (Ky.)   code,  p.    37.      A 

Hills  V.  Nash,  1  Phil.  594,  597  ;  Brown  v.  fund  had  been  devised  to  a  trustee  for  the 

De  Tastet,  Jac.  284 ;  Bray  v.  Fromont,  6  benefit  of  the  superannuated  preachers  of 

Mad.  5.  a  certain  "  conference."    It  was  held  that 

■*  1  Daniell's,  p.  219;  Story  Eq.  PL,  the  superannuated  preachers  of  that  body 


308  CIVIL    REMEDIES. 

jointly  interestecUin  the  account  is  out  of  the  jurisdiction,  the 
cause  has  sometimes  been  allowed  to  go  on  without  him  as  a 
party.  1 

§  200.  I  shall  now  briefly  describe  some  of  the  most  important 
special  applications  of  the  foregoing  general  principles  in  relation 
to  community  and  concurrence  of  interests.  As  a  result  of  these 
principles,  it  is  a  general  rule,  with  but  few  well-defined  excep- 
tions, that  trustees  cannot  alone  maintain  actions  relating  to  the 
trust  property,  but  the  beneficiaries  must  also  be  made  parties  to 
the  suit  in  some  form,  either  as  coplaintiffswith  the  trustees  or  as 
defendants.^  The  following  are  simple  illustrations  of  this  gen- 
eral doctrine.  Where  trustees  in  trust  to  sell  lands  brought  an 
action  against  the  purchaser  at  their  sale  to  compel  a  specific 
performance  of  their  contract  of  purchase,  it  was  held  that  the 
cestuis  que  trustent  of  the  purchase-money  must  be  made  parties.^ 
Again,  where  the  trustees  of  a  numerous  unincorporated  society 
brought  an  action  to  compel  the  specific  performance  of  an  agree- 
ment entered  into  by  themselves  for  the  benefit  of  the  association, 
it  was  held  that  the  members  of  the  society  should  be  joined,  or, 
if  they  were  too  numerous,  then  some  of  them  ought  to  be  made 
coplaintiffs,  suing  as  representatives  on  behalf  of  the  others.* 
There  are,  however,  as  already  stated,  certain  well-defined  excep- 
tions to  this  general  rule  requiring  trustees  and  cestuis  que  trustent 
to  be  joined  in  suits  concerning  the  trust  property,  of  which  the 
following  are  the  most  important :  (1)  When  trustees  appointed 
to  sell  lands  are  expressly  authorized  by  the  deed  of  trust  to  sell 
in  their  own  names,  and  it  is  further  expressly  provided  in  such 

might  unite  in  an  action  to  enforce  the  lantl,  1  Paige,  20;  Schenck  v.  EUingwood, 

trust  for  their  own  benefit  and  tliat  of  3  Edw.   Ch.   175 ;  Helm  v.  Hardin,  2  B. 

future  persons  entitled  under  it.     Baptist  Moii.  232;  Burney  v.  Spear,  17  Geo.  223; 

Churcli  V.  Presbyterian    Cliurcli,   18   B.  Woodward  ?-•.  Wood,  I'J  Ahi.  213;  Kirk  i'. 

Mon.  635.  Clark,    Prec.     Ciia.    275;    Piiillipson    v. 

1  Story  Eq.  PI.,  §§  78,  89;  West  v.  Gatty,  6  Hare,  26.  Where  two  or  more 
Randall,  2  Mason,  196  ;  Vose  v.  Philbrook,  trustees  have  been  appointed,  they  must 
3  Story,  335;  Lawrence  v.  Hokes,  53  Me.  all  unite  in  actions  brouglit  by  them,  as 
110 ;  Mudgett  v.  Gager,  52  Me.  541.  their  right  is  strictly  joint ;  and  this  rule 

2  1  Daniell's,  pp.  220-224 ;  Story  Eq.  applies,  although  some  one  of  them  may 
PI.,  §§  207,  209 ;  Covington,  &c.  R.  R.  v.  have  attempted,  by  assignment  or  other- 
Bowler's  Heirs,  9  Bush,  468 ;  Western  wise,  to  divest  himself  of  the  trust. 
R.  R.  1-.  Nolan,  48  N.  Y.  513;  Large  v.  Thatcher  v.  Candee,  33  How.  Pr.  145 
Van  Doren,  1  McCartcr,  208  ;  Stilwell  v.  (N.  Y.  Ct.  of  App.). 

McNeely,  1   Green  Ch.  305 ;   Van  Doren  3  Calverley  v.  Phelp,  6  Mad.  229. 

V.  Robinson,  1  C-  E.  Green,  256 ;  Malin         <  Douglas  v.  Horsfall,  2  S.  &  S.  184. 
V.  Malin,  2  Johns.  Ch.  238 ;  Fish  v.  How- 


PLAINTIFFS   IN    EQUITABLE   ACTIONS.  309 

deed  that  their  own  receipt  of  the  price  shall  be  a  complete  dis- 
charge to  the  purchaser,  it  is  settled  that  they  may  maintain  a 
suit  to  compel  a  specific  performance  against  the  purchaser  with- 
out joining  the  cestuis  que  trustent  with  themselves  as  parties. ^ 

(2)  In  some  special  instances,  where  the  interest  of  the  benefi- 
ciaries was  simply  collateral  to  the  rights  of  the  trustee  against 
the  defendant,  the   trustee  has  been   permitted    to    sue    alone.^ 

(3)  And  in  suits  between  the  trustees  themselves,  brought  by 
one  to  compel  the  other  to  account  for  and  restore  trust  property 
misappropriated  by  him,  the  beneficiaries  need  not  be  made  par- 
ties.'^ But  if  the  cestuis  que  trustent  have  concurred  in  the  breach 
of  trust,  they  must  be  joined  in  the  suit  brought  by  one  trustee 
against  his  co-trustee  to  repair  the  fault.* 

§  261.  (4)  The  most  important  exception  by  far,  as  well  as  the 
most  familiar  one,  is  the  case  of  executors  and  administrators ; 
they  can  always  sue  alone,  without  joining  the  legatees,  distribu- 
tees, creditors,  or  other  persons  interested  in  the  estate,  as  parties 
either  plaintiff  or  defendant.  The  legal  title  to  the  personalty  is 
so  completely  vested  in  the  executors  and  administrators,  that, 
both  in  law  and  in  equity,  they  are  considered  as  fully  representing 
the  rights  and  interests  of  all  the  other  persons  who  have  ultimate 
claims  upon  such  estate  as  legatees,  distributees,  or  creditors. 
In  all  actions,  therefore,  relating  to  the  estate,  they  sue  alone. 
This  rule  is  fully  established  in  equity  as  well  as  at  law.^  All  the 
acting  executors  or  administrators  must  join  ;  ^  but  if  a  portion  only 
have  proved,  the  others  need  not  be  made  parties,  although  they 
may  not  have  formally  renounced.'     It  is  not  indispensable,  how- 

1  See  1  Daniell's,  pp.  221,  222,   and  Hare,  313  ;    Smith   v.  Bolden,  33  Beav. 

cases  cited.  262.     It  has  been  held  that  an  adminis- 

-  As,  for  example,  in  Saville  v.  Tan-  trator,  suing  in  equity  to  recover  assets 

cred,    1  Ves.  Sen.  101;  3    Swanst.  141;  of  tlie  estate,  may  join  tlie  distributees  as 

Story  Eq.  PI.,  §  221.  coplaintiffs  ;  that  such  uniting  of  parties, 

"*  Story    Eq.    PI.,    §    213 ;    Franco    v.  tliough  not  at  all  necessary,  is    not  im- 

Franco,  3  Ves.  77 ;    Bridget  v.   Haraes,  proper.      Richardson's    Administrator   v. 

1     Coll.  72;   May   v.   Selby,  1    Y.  &  C.  Spencer,  18  B.  iMon.  450.     An  adminis- 

235;   Horsley  v.  Fawcett,  11  Beav.  565;  trator  may  maintain  an  action  to  set  aside 

Peake  v.   Ledger,   8    Hare,    313  ;    4   De  transfers  of  his  intestate  in  fraud  of  cred- 

G.  &   S.   137  ;    Baynard  i'.   WooUey,   20  itors,  since  he  represents  the  creditors  as 

Beav.  583  ;  Allen  v.  Knight,  5  Hare,  272,  well  as  the  deceased.     Cooley  v.  Brown, 

277 ;    Cunningham  v.  Pell,  5  Paige,  607.  30  Iowa,  470,  473,  474. 
But  see  Chancellor  v.  Morecraft,  11  Beav.         6  x  Daniell's,  p.  226  ;  Offley  v.  Jenney, 

262.  3   Ch.    Rep.   92;    Cramer  v.    Morton,   2 

<  Jesse  V.  Bennett,  6  De  G.,  M.  &  G.609.  MoUoy,  108. 

5  1  Daniell's,  p.  224;  Jones  v.  Good-         "  Davies  u.  Williams,  1  Sim.  5  ;  Dyson 

child,  3  P.  Wms.  33;  Peake  v.  Ledger,  8  v.  Morris,  1  Hare,  413 ;  Rinehart  v.  Rine- 


310  CIVIL   REMEDIES. 

ever,  that  all  the  executors  or  administrators  should  be  plaintiffs  ; 
for  it  is  enough  in  equity  if  all  the  parties  are  before  the  court,  so 
that  one  executor  or  administrator  may  sue   as  plaintiff,  if  he 
make  his  co-executor  or  co-administrator  a  defendant.^     When  a 
residuary  legatee  sues  for  his  share  of  the  residue,  all  the  other 
residuary  legatees  must  be  joined  either  as  plaintiffs  or  defend- 
ants.2     And  in  a  suit  for  distribution,  all  the  distributees  must  be 
brought  in  as  parties,  primarily  as  plaintiffs,  but  at  all  events  as 
defendants.^     Where  legacies  are  charged  upon  real  estate,  the 
executors  alone  are  not  sufficient  parties ;  but  all  the  other  lega- 
tees must  be  brought  in,  so  that  the  assets  may  be  marshalled,  and 
the  respective  rights  of  all  may  be  determined.^     (5)  Another 
important  exception  to  the  rule  requiring  the  union  of  benefi- 
ciaries and  trustees  in  suits  relating  to  the  trust  property  is  the 
case  of  assignees  in  trust  for  creditors,  and  the  assignees  in  bank- 
ruptcy or  insolvency.     These  particular  trustees,  as  well  as  exec- 
utors and  administrators,  may  always  sue  and  defend  alone  in 
such  actions,  without  joining  with  themselves  the  creditors  whom 
they  represent  as  cestuis  que  trustent.^     Nor  need  the  assigning 
debtor,  bankrupt,  or  insolvent  be  made  a  party .*^ 

§  262.  The  principle  which  requires  all  persons  claiming  in- 
terests in  the  subject-matter  concurrent  with  the  plaintiff  who 
institutes  the  suit  to  be  made  parties,  is  applicable  in  general  to 
those  having  future  and  expectant  interests,  as  well  as  to  those 
whose  interests  are  present,  and  whether  they  are  in  possession, 
remainder,  or  reversion.  It  is  the  established  doctrine  of  equity 
that  when  a  person  claims  an  estate,  either  under  a  will  or  a  deed 
by  which  successive  estates  or  interests  have  been  created,  all  the 

liart,  2   McCarter,  44  ;   Marsh  v.  Oliver,  9  Hare,  App.  32,  38;  Gould  n.  Hayes,  19 

1  McCarter,  262.     But  an  executor  who  Ala.  438. 

has  not  proved  the  will  may,  nevertheless,  ^  Hawkins   v.    Craig,    1    B.  Mon.  27; 

be  a  necessary  defendant  in  a  suit  brought  Osborne  v.  Taylor,  12  Gratt.  117.    But  see 

to  carry  its  trusts  into  effect.     Ferguson  Keeler  v.  Keeler,  3  Stockt.  458  ;  Moore  v. 

V.  P^erguson,  1  Hayes  &  J.  300;  Yates  v.  Gleaton,  23  Geo.  142. 

Compton,  2  P.  Wins.  308  ;  Cramer  v.  Mor-  *  Morse  ;;.  Sadler,  1  Cox,  352 ;  Hallett 

ton,  2  Moll    108  ;  Thompson  v.  Graham,  v.  Hallett,  2  Paige,  15;  Howland  v.  Fish, 

1  Paige,  384.  1    l^aige,  20  ;    Todd   v.   Sterrett,  6  J.  J. 

1  Wi'lkins  V.  Fry,  1   Meriv.  244,  262;  Marsh.  432. 

Blount  r.  Burrow,  3  Bro.  C.  C.  90;  Dare  ^  1  Daniell's,  p.  224  ;  Spraggv.  Binkes, 

V.  Allen,  1  Green  Ch.  288.  5  Ves.  587. 

2  1  Uaniell's,  p.  225 ;  Harvey  i'.  «  De  GoUs  v.  Ward,  3  P.  Wms.  811 
Harvey,  4  Beav.  215,  220  ;  Smart  v.  Brad-  (n.) ;  Kaye  v.  Fosbrooke,  8  Sim.  28;  Dy- 
stock,  7  Beav.  500;  Bateman  v.  Margeri-  son  v.  Hornby,  7  DeG.,  M.  &  G.  1. 

son,  6  Hare,  490,  499 ;  Doody  v.  Higgins, 


PLAINTIFFS   IN    EQUITABLE    ACTIONS,  311 

other  persons  claiming  under  the  same  will  or  deed,  down  to  the 
one  who  is  entitled  to  the  first  vested  estate  of  inheritance,  must 
be  joined  in  the  action  as  parties,  either  as  coplaintiffs  or  as  de- 
fendants. To  illustrate  by  a  simple  example  :  If,  by  a  deed,  land 
has  been  given  to  A.  for  years,  with  remainder  to  B.  for  life,  and 
remainder  to  C.  in  fee,  and  A.  is  in  possession  as  the  tenant  for 
years,  B.  cannot  alone  maintain  an  action  against  A.  to  restrain 
the  commission  of  waste  ;  but  C,  the  remainder-man  in  fee,  must 
also  be  brought  in  as  a  party,  naturally  as  a  coplaintiff,  but  if  not, 
then  as  a  defendant,  so  that  he  may  be  before  the  court  represent- 
ing the  ultimate  ownership.  All  those  entitled  to  intermediate 
estates  prior  to  the  first  vested  inheritance  must  also  be  joined, 
so  that  the  entire  ownership  may  be  brought  before  the  court, 
and  may  be  bound  by  its  decree.^ 

§  263.  In  actions  to  compel  the  specific  performance  of  con- 
tracts, the  immediate  parties  to  the  agreement  are,  as  a  general 
rule,  the  only  necessar}'  parties  to  the  suit ;  but  this  includes,  of 
course,  those  who  by  substitution  become  clothed  with  the  rights 
or  duties  of  the  original  contractors,  as  heirs,  devisees,  or  some- 
times the  personal  representatives.^  If  a  tract  of  land  is  sold  in 
separate  parcels  to  different  purchasers,  the  latter  cannot  unite  in 
an  action  for  a  specific  performance  against  the  vendor,  since 
each  sale  is  distinct,  and  depends  upon  its  own  circumstances. 
But  if  there  is  only  one  contract  of  sale  to  several  persons  cover- 
ing the  land  in  question,  although  it  may  have  stipulated  for  dif- 
ferent shares,  the  purchasers  may  unite  ;  it  is  not  necessary  that 
the  vendees  should  be  jointly  interested  in  the  jDurchase,  in  the 
legal  import  of  that  term,  it  is  enough  if  they  have  common  or 
concurrent  interests  in  the  subject-matter.^  If  the  vendee  in  a 
land  contract  dies,  his  heirs  are  the  parties  to  bring  an  action  for 
a  specific  performance  ;  but  his  administrator,  when  the  suit  is 

1  1  Daniell's,  pp.  227-230 ;  Story  Eq.  v.  Dunconibe,  7  Hare,  24 ;  De  Hoghton 

PL,§144;  Finch  w. Finch,  2  Ves.  Sen.  492;  r.  Money,    L.  R.   2   Ch.   App.   164,  170; 

MoHneux  v.  Powell,  3  P.  Wms.  268  (n.)  ;  Bishop  of  Winchester  v.  Mid   Hants  R. 

Herring  v.  Yoe,  1  Atk.  290;  Pyncent  v.  Co.,  L.R.  5  Eq.  17;  Aberaman  Iron  Co. 

Pyncent,  3  Atk.  571  ;  Sohierw.  WilHams,  v.  Wiekens,  L.  R.  4  Ch.  App.  101 ;  Fen- 

1  Curtis,  479.  wick  v.  Bulnian,  L.  R.  9  Eq.  165  ;  Daking 

-  1  Daniell's,  p.  230  ;  Taskeri;.  Small,  3  v.  Whimper,   26    Beav.  568;    Morgan  v. 

My.  &  Cr.  63,  69;  Wood  y.  White,  4  My.  Morgan,  2  Wheat.  290;  Lord   v.  Under- 

&  Cr.   460;  Robertson  v.   Gr.   West.   R.  dunck,  1  Sandf.  Cli.  46  ;  Hoover  y.Donally, 

Co.,  10  Sim.  314  ;  Humphreys  v.  HoUis,  3  Hen.   &  Mun.   316.     See   McCotter   v. 

Jac.  73  ;  Paterson  v.  Long,  5  Beav.  186  ;  Lawrence,  6  N.  Y.  Sup.  Ct.  392,  395. 

Peacock  v.  Penson,  11  Beav.  355;  Petre  ^  Owen  r.Frink,  24  Cal.  171,  177. 


312  CIVIL   REMEDIES. 

simply  to  recover  damages.^  It  follows,  from  the  general  rule 
given  above,  that  a  mere  stranger  claiming  an  interest  or  estate 
under  an  adverse  title  is  neither  a  necessary  nor  a  proper  party  to 
the  suit  for  a  specific  performance  ;  his  rights  cannot  be  affected 
by  the  decree  made  therein,  and  must,  in  fact,  be  determined  in 
another  and  distinct  proceeding.^  But  a  person  claiming  under  a 
prior  agreement  is  not  such  a  mere  stranger,  and  he  is  a  proper 
party  in  an  action  brought  by  the  vendee  to  compel  a  specific 
performance,  and  to  determine  the  right  to  the  purchase-money.* 
Another  person  than  the  vendor  may  also  be  so  interested  in  the 
subject-matter  of  the  contract,  that  his  presence  or  aid  will  be 
needed  in  order  to  make  out  a  complete  title ;  and,  when  this  is 
the  case,  such  person  may  also  be  joined  as  a  party  to  the  suit  for 
a  specific  performance,  although  not  an  actual  party  to  the  con- 
tract sought  to  be  enforced.*  Also,  when  a  third  person  has, 
after  the  making  of  the  contract,  acquired  some  interest  in  the 
subject-matter  under  the  vendor,  but  with  notice  of  the  vendee's 
rights,  he  may  be  brought  in  as  a  codefendant  with  the  vendor  in 
the  suit  for  a  specific  performance.^ 

§  264.  It  was  a  well  established  doctrine  of  equitable  jDroced- 
ure,  that,  in  suits  to  carry  into  effect  and  enforce  the  trusts  of  a 
will,  the  heirs-at-law  must  be  made  parties.  This  rule  has,  how- 
ever, been  greatly  modified,  if  not  actually  abrogated,  in  England 
by  recent  statutory  legislation  ;  and  in  the  United  States  it  is  not 
often  invoked  because  such  suits  are  comparatively  infrequent.^ 
Where,  on  the  other  hand,  an  action  is  brought  to  set  aside  a  Avill, 
then  all  the  devisees  are  necessary  parties,  and  the  executor,  un- 
less he  has  renounced  ; "  and  all  the  legatees  residuary  and  other.^ 


1  Webster  v.  Tibbitts,  19  Wise.  438 ;  13  Sim.  206 ;  Leuty  v.  Hillas,  2  DeG.  & 
Peters  v.  Jones,  35  Iowa,  512,  518.  J.  110.     See  Carter  v.  Mills,  30  Mo.  432. 

2  Tasker  v.  Small,  3  My.  &  Cr.  63,  69 ;  This  rule,  given  in  the  text,  must  be  ap- 
De  Hoghton  v.  Money,  L.  R.  2  Ch.  App.  plied  under  a  great  variety  of  external 
164,  170.  circumstances,  and  is   exceedingly  com- 

*  West   Midland    R.    Co.  v.  Nixon,   1  prehensive  in  its  operation. 
H.   &   M.    176  ;    Chadwick   v.   Maden,  9  *>  See,  on  the  subject  of  the  heirs  being 

Hare,  188.  parties,  and  of  the  statutory  changes  in 

4  Wood  V.  White,  4  M.  &  C.  460,  483;  England,  1  Daniell's,  pp.  231,  232;  Story 

Chadwick  v.  Maden,  9  Hare,  188 ;  Cope  Eq.  PI.,  §  163. 

V.  Parry,  2  Jac.  &.  W.  538;  McCotter  v.         ^  Vancleave  v.  Beam,  2  Dana,  155; 

Lawrence,  6   N.  Y.   Sup.  Ct.  392,  395 ;  Hunt  v.  Acre,  28  Ala.  580  ;  Vanderpoel 

Story  Eq.  PI.,  §  209.  v.  Van  Valkenburgh,  6  N.  Y.  190. 

'o  Spence  v.  Hogg,  1  Coll.  225  ;  Collett  8  McMaken  v.  McMaken,  18  Ala.  576. 
V.  Hover,  1  Coll.  227 ;  Cutts  i^.  Thodey, 


PLAINTIFFS   IN    EQUITABLE   ACTIONS.  313 

§  265.  The  broad  principle  which  underlies  most  of  the  fore- 
going special  rules  is,  that  when  an  action  is  instituted  by  some 
determinate  individual  for  his  own  benefit,  whom  we  call  the  plain- 
tiff, all  persons  having  interests  or  claims  against  the  defendant, 
in  relation  to  the  subject-matter,  concurrent  with  his,  must  be 
brought  in  as  parties  ;  if  they  do  not  wish  to  unite  as  coplaintiffs, 
they  must  be  added  as  defendants.  The  connecting  link  is  the 
concurrence  of  the  interests.  If  this  element  is  wanting,  the 
principle  itself  is  not  operative.  It  follows,  therefore,  as  a  general 
principle,  —  the  converse  of  that  already  discussed,  —  that  when 
a  suit  is  instituted  hy  some  determinate  individual,  whom  we  call 
the  plaintiff,  and  there  are  other  persons  asserting  claims  against 
the  defendant,  even  in  respect  to  the  same  subject-matter,  but 
such  claims  are  set  up  under  titles  antagonistic  to,  or  inconsistent 
with,  that  of  the  plaintiff,  these  persons  should  not  be  made  par- 
ties to  the  action  either  as  plaintiffs  or  as  defendants,  since  the 
indispensable  element  of  concurrence  in  their  interests  is  wanting, 
so  that  if  they  were  joined  as  parties,  two  distinct  controversies  at 
least  would  be  carried  on  in  the  single  litigation.^  Among  the 
examples  of  such  improper  union  of  persons  whose  interests  are 
antagonistic  is  the  case  of  an  action  to  redeem  brought  by  an  heir- 
at-law  and  a  devisee  under  a  will ;  the  joinder  is  improper,  since 
one  or  the  other  of  these  parties  has,  of  course,  no  right  to  redeem 
in  the  case  supposed.^  And  a  person  liable  to  account  to  the  other 
plaintiffs  cannot  be  joined  as  a  coplaiutiff.'^  This  objection,  based 
upon  the  inconsistency  of  rights  and  interests,  does  not  apply, 
however,  to  causes  in  which  a  single  plaintiff  unites  in  himself 
two  or  more  conflicting  claims  or  interests.'* 

§  266.  Because  claims,  titles,  and  interests  are  distinct,  and,  in 
a  certain  sense,  independent  of  each  other,  they  are  not  therefore 
necessarily  antagonistic  or  inconsistent ;  and  persons  having  such 
distinct  claims  and  interests,  which  are  not  antagonistic  or  incon- 
sistent, may  often  be  united  in  an  action  of  which  the  object  is 

1  See  1  Daniell's,  pp.  229,  230-233.  comb  v.  Horton,  18  Wise.  566 ;  Gates  v. 

2  Lord  Cholmondeley  v.  Lord  Clinton,  Boomer,  17  Wise.  455 ;  Crocker  v.  Craig, 
2  Jac.  &  W.  1,  135 ;  4  Bligli,  1 ;  s.  c.  T.  46  Me.  827 ;  Fletcher  v.  Holmes,  40  Me. 
&  E.  107,  115 ;  Fulham  v.  McCarthy,  1  864. 

H.  L.  Cases,  703  ;  Saumarez  r.  Saumarez,         ^  Jacob  v.  Lucas,  1  Beav.   436,  448; 

4  M.  &  C.  336 ;  Robertson  v.  Southgate,  Griffitii  v.  Vanheythuysen,  9  Hare,  85. 
6  Hare,  536  ;  Bill  v.  Cureton,  2  M.  &  K.         ^  Miles  v.  Durnford,  2  DeG.,  M.  &  G. 

503;  Jopp  y.  Wood,  2  DeG.,  J.  &  S.  323;  641;    Carter  v.   Sanders,  2  Drew,  248; 

Griggs  V.  Staplee,  2  DeG.  &  S.  572 ;  New-  Foulkes  v.  Davies,  L.  R.  7  Eq.  42. 


314  CIVIL    REMEDIES. 

their  common  benefit.  In  applying^  this  principle,  there  is  some 
diversity  of  opinion,  and  even  conflict  among  the  decided  cases. 
In  certain  classes  of  actions  the  doctrine  is  well  settled,  and  the 
joinder  of  such  persons  is  a  matter  of  common  practice.  In  other 
classes  of  suits  the  courts  have  not  been  so  unanimous  ;  sometimes 
thev  have  yielded  to  the  general  tendency  of  equity,  which  seeks 
to  determine  all  disputes  concerning  the  same  su])iect-matter  in 
one  litigation,  and  have  therefore  permitted  the  union  ;  at  other 
times  they  have  been  controlled  by  the  fact  that  there  was  no  real 
legal  community  of  interest  among  the  parties,  and  have  refused 
to  allow  the  attempted  joinder.  As  it  will  be  impossible  to  de- 
duce any  general  rule  covering  all  such  instances,  I  shall  first 
mention  and  illustrate  those  classes  of  causes  in  which  the  doc- 
trine has  been  established,  and  shall  in  the  second  place  collect 
some  examples  of  other  classes  in  which  there  is  no  such  unanimity 
of  judicial  decision.  The  most  familiar  and  important  case  of  per- 
sons having  distinct  but  not  conflicting  interests,  and  in  respect 
of  whom  the  rule  concerning  their  joinder  as  parties  is  well  settled, 
is  that  of  creditors.  There  are  several  species  of  actions  brought 
by  creditors,  in  which  the  various  creditors  of  a  single  debtor  may 
all  unite  as  coplaintiffs.  Thus,  the  creditors  of  a  deceased  debtor 
may  all  join  in  the  same  administration  suit  brought  to  settle  his 
estate,  and  to  administer  its  assets  ;  but  this  species  of  action  is 
quite  uncommon  in  the  United  States. ^  Such  union,  however, 
is  not  necessary ;  one  may  sue  alone  if  he  choose  ;  ^  and  when 
the  number  is  great,  one  may  sue  on  behalf  of  all  the  others. 

§  2*37.  The  most  common  and  important  action  by  creditors, 
to  which  the  rule  may  be  applied,  is  the  creditor's  suit,  or  an 
action  in  the  nature  of  a  creditor's  suit.  A  single  judgment  cred- 
itor may  alone  maintain  an  action  to  enforce  the  payment  of  his 
judgment,  to  reach  equitable  assets,  to  set  aside  fraudulent  trans- 
fers by  his  debtor  and  thus  let  in  the  lien  of  his  judgment,  and  for 
other  similar  relief;  and  the  other  judgment  creditors  need  not 
necessarily  be  joined,  either  as  coplaintiffs  or  as  defendants.  On 
the  other  hand,  two  or  more  of  the  judgment  creditors,  or  all  of 
them  together,  may  unite  in  bringing  such  an  action,  or  finally,  one 

1  1  Daniell's,  p.  235  ;  Cosby  v.  Wick-         -  Anon.,  3  Atk.  o72  ;  Peacock  v.  Monk, 

liffe,  7  B.  Mon.  120  ;  Conro  i;.  Port  Henry  1  Ves.  127,  131.     See  Hills  v.  Sherwood, 

Iron   Co.,    12   Barb.   27 ;    Cheshire   Iron  48  Cal.  386,  392. 
Works  V.  Gay,  3  Gray,  531,  534,  535. 


PLAINTIFFS    IN    EQUITABLE    ACTIONS.  315 

may  sue  on  behalf  of  himself,  and  all  others  Avho  are  in  the  same 
position.^  Since  all  the  creditors  have  the  same  kind  of  interest 
in  the  common  fund  —  the  assets  of  the  debtor,  and  since  a  re- 
ceiver is  frequently  appointed  over  that  fund,  the  utmost  latitude 
is  permitted  in  respect  to  the  union  of  different  creditors  as  co- 
plaintiffs.  One  may  maintain  the  action  alone,  or  may  sue  on 
behalf  of  himself  and  of  all  the  others  similarly  situated,  or  all 
may  join,  or  any  number  less  than  all  may  at  their  election 
institute  the  action.  Such  an  action  may  also  be  brought  by  a 
receiver  of  the  debtor's  property,  appointed  in  proceedings  sup- 
plementary to  execution,  and  he  may  either  sue  alone,  or  the 
judgment  creditors,  or  some  of  them,  may  join  with  him.^ 

§  268.  Where  an  assignment  has  been  made  in  trust  for  credi- 
tors, one  of  the  creditor  beneficiaries  cannot  maintain  an  action  to 
enforce  the  trust,  to  compel  an  accounting  by  the  assignee,  and 
to  procure  a  settlement  and  distribution  of  the  trust  estate.  All 
the  creditors  must  unite  in  bringing  such  an  action,  either  actually 
or  by  representation ;  for  where  the  number  of  such  creditors  is 
great,  one  or  more  have  been  permitted  to  sue  on  behalf  of  them- 
selves and  all  the  others.^  The  rule  thus  stated  in  respect  of 
creditors  is  simply  a  special  case  of  the  general  doctrine  appli- 
cable to  every  species  of  trust.     In  actions  based  upon  the  trust, 

1  Bartlett  v.  Drew,  57  N.  Y.  587,  588,  wliether   the   complaint    is    multifarious 

589  ;    Clarkson  v.   De  Peyster,  3  Paige,  should   be   determined  according  to  the 

320 ;    Pai-melee   v.   Egan,   7   Paige,   610 ;  established  rules  upon  that  subject  in  re- 

Grosvenor  v.  Allen,  9  Paige,  74  ;  Farnham  spect  to  creditors'  bills  ;  and,  in  respect  to 

V.    Campbell,    10    Paige,    598;    Way   v.  them,  it  has  been  determined  that  different 

Bragaw,  1  C.  E.  Green,  213,  216;  Edgell  judgment  creditors  may  join  in   one  suit 

V.  Haywood,  3  Atk.  357.     See,  especially,  against  the  judgment  debtor  and  his  fraud- 

Conro  V.  Port  Henry  Iron  Co.,  12  Barb,  ulent  grantees."      In    Gates  v.    Boomer, 

27,  57-60,  per  Willard  J.,  for  a  full  dis-  Cole  J.  said  :  "  Both  plaintiffs  have  a  com- 

cussion  of  the  subject  and   an   exhaust-  mon  interest  in  removing  the  fraudulent 

ive  citation   of  authorities.      When   the  conveyance,  so  that  they  can  enforce  their 

debtor  is  dead,  a  judgment  creditor  may  respective  judgments.    'Aside  from  our 

bring  an  action  to  set  aside  a  fraudulent  statute,  we  think  there  would  have  been 

transfer  made  by  him.     Hills  c.  Sherwood,  no  misjoinder  of  parties  ;  but  the  provi- 

48  Cal.  386,  392.     An  attaching  creditor  sion  of  the  statute   [the  code]  is  unques- 

merely  cannot  maintain  the  action.    Weil  tionablj'  broad  enough  to  meet  the  case, 

V.  Lankins,  3  Neb.  384,  386.  since   both   plaintiffs  have  a  direct    and 

"  See  cases  cited  in  last  preceding  note  ;  common  interest." 
also,  Hamlin  v.  Wright,  23  Wise.  491 ;  3  gtory  Eq.  PI.,  §§  150,  207 ;  Bain- 
Gates  V.  Boomer,  17  Wise.  455,  458  ;  Ruf-  bridge  v.  Burton,  2  Beav.  539.  In  Harri- 
fing  V.  Tilton,  12  Ind.  259  ;  Burton  v.  An-  son  v.  Stewardson,  2  Hare,  530,  twenty 
derson,  Stanton's  (Ky.)  code,  p.  34;  Baker  creditors  was  held  to  be  too  small  a  num- 
V.  Bartol,  6  Cal.  483.  In  Hamlin  t'.  ber  to  allow  a  suit  by  representation. 
Wright,   Paine   J.   said:  "The  question 


316  CIVIL   REMEDIES. 

recognizing  its  existence  and  validity,  and  seeking  to  cany  out 
its  terms  and  provisions,  all  the  persons  interested  must  be  par- 
ties ;  all  the  beneficiaries  must  therefore  unite  in  an  action  against 
the  trustee  brought  to  obtain  an  accounting,  and  a  winding  up 
and  settlement  of  the  estate,  or,  in  technical  phraseology,  an  action 
brought  to  administer  the  trust.^  While  the  beneficiaries  as  a 
class  must  all  unite,  either  actually  or  through  a  representative 
plaintiff,  in  actions  based  upon  the  trust  as  existing,  and  brought 
to  administer  it,  one  person  who  would  be  a  beneficiary  may, 
without  joining  any  others,  maintain  a  suit  which  is  based  upon 
a  denial  of  the  trust  and  seeks  to  overthrow  it,  and  to  set  aside  the 
instruments  which  created  it,  and  the  acts  of  the  trustee  done 
under  it.  Thus,  for  example,  any  judgment  creditor  may  bring 
an  action  in  his  own  name  to  set  aside  an  assignment  in  trust  for 
himself  and  the  other  creditors.^ 

§  269.  From  the  cases  of  creditors  and  cestuis  que  trustent,  in 
respect  of  whom  the  rule  is  well  settled,  I  now  pass  to  other 
classes  of  persons  having  distinct,  though  not  conflicting  interests 
and  claims,  and  I  collect  a  number  of  decisions  which  show  the 
tendency  of  the  courts  in  dealing  with  them.  Owners  of  entirely 
distinct  and  separate  parcels  of  land,  although  no  community  of 
right  or  interest  existed  among  them,  have  been  permitted  to 
unite  in  equitable  actions  based  upon  their  individual  separate 


^  De  la  Vergne  v.  Evertson,  1  Paige,  mittecl  by  a  special  statute,  in  Minnesota, 

181 ;  Greene  v.  Sisson,  2  Curtis,  171 ;  Haw-  to  maintain  an  action  for  an  account,  and 

kins  V.   Craig,   1   B.   Mon.  27  ;   Elam  v.  to  enforce  the  trust,  and  to  remove  the 

Garrard,  25   Geo.  557 ;  High  v.  Worley,  trustee.     This   statute   is  general   in   its 

32   Ala.   709 ;    Gould  v.    Hayes,   19  Ala.  terms,   and   applies   to   all   trustees   and 

438  ;    Keeler  v.  Keeler,   3   Stockt.  458  ;  trusts.      "  Upon  petition  or  bill  of  any 

Case  V.   Carroll,  35  N.  Y.  385 ;    Sortore  person  interested  in  the  execution  of  an 

V.   Scott,  6    Lans.    271,    275;    Munch   v.  express  trust,  the  Court  of  Chancery  may 

Cockerell,  8  Sim.  219,  231.    See  French  y.  remove  any  trustee  who  shall  have  vio- 

Gifford,  30  Iowa,  148,  158,  159.  lated,  or  threatened  to  violate,  his  trust." 

2  In  Ilubbell  V.  Medbury,  53  N.  Y.  98,  Compiled   Stat,   of  Minn.,  p.   384,  §  26; 

where  an  assignment  had  been  made  for  Goncelier   r.   Foret,   4    Minn.    13.      See 

the  benefit  of  creditors,  a  cestui  (jite  trust  French  v.  Gifford,  30  Iowa,  148,  158,  159. 

under  it  and  the  assignor  brought  an  ac-  In   the   ca.se  of  a  charitable   trust,  any 

tion  to  set  aside  a  wrongful  purchase  of  beneficiary  having  an  interest  in  the  use 

the  trust  property  by  the  assignee ;  the  or  in  the  subject  of  the  gift,  has  an  un- 

action  was  sustained,  and  it  was  held  that  questionable  right  to  institute  a  proceed- 

a  substituted  trustee  as  tlie  plaintiff  was  ing  in  equity  for  the  purpose  of  securing 

unnecessary.     When  a  trustee  is  guilty  of  a  faithful  execution  of  the  beneficent  ob- 

misconduct  in  liis  trust,  by  misapplying  ject  of  the  founder  of  the  charitj'.  Baptist 

the  assets,  or  converting  the  same  to  his  Church   v.  Presbyterian   Church,   18  B. 

own  use,  a  single  cestui  que  trust  is  per-  Mon.  635,  641. 


PLAINTIFFS   IN    EQUITABLE   ACTIONS.  317 

property,  simply  because  the  wrong  to  be  remedied  or  prevented 
was  a  single  act,  and  affected  all  of  them  and  all  of  their  lands  in 
the  same  manner.  Thus,  owners  of  separate  tenements  have 
been  allowed  to  join  in  an  action  brought  to  restrain  and  remove 
a  nuisance  which  was  common  to  all.^  Two  or  more  owners  of 
separate  lots  assessed  for  a  local  street  improvement,  when  the 
assessment  is  claimed  for  the  same  reason  to  be  invalid  as  to  all, 
may  unite  in  an  action  to  restrain  the  collection ;  and  when  the 
number  of  such  owners  is  great,  one  may  sue  as  a  representative 
for  all  the  others."^  Also  a  number  of  proprietors  of  adjacent  and 
separate  lots  fronting  on  a  street  through  which  a  railroad  was  laid 
out,  were  permitted  to  join  in  a  suit  for  the  purpose  of  preventing 
the  company  from  constructing  its  track  in  such  a  manner  as  to 
interfere  with  access  to  all  of  their  several  lots  alike.''^  The  ques- 
tion as  to  the  joinder  of  plaintiffs  who  own  distinct  parcels  of 
land,  or  who  are  clothed  with  distinct  primary  rights  of  the  same 
kind,  which  are  all  interfered  with  and  affected  in  the  same  man- 
ner by  a  common  wrong,  has  frequently  arisen  in  actions  brought 
by  tax-payers  and  freeholders  to  prevent  or  set  aside  some  pro- 
ceeding done  under  the  forms  of  public  authority,  and  which  is 
designed  to  create  and  impose  a  public  burden,  such  as  a  tax  for 

1  Peck   V.  Elder,  3  Sandf.  126.     But  substantially  re-enact  the  equity  rule,  and 

six    owners    of    distinct    tracts   of    land  adds  :  "All  who  are  united  in  interest  must 

through   which  a   stream    ran  were   not  join  in  the  suit,  unless  they  are  so  numer- 

permitted  to  join  in  an  action  to  restrain  ous  as  to  render  it  impracticable  to  bring 

another  riparian  owner  from  diverting  the  them  all  before  the  court;    while  those 

water.     Schultz  v.  Winter,   7   ISfev.  130.  who  have  only  a  common  or  general  in- 

See,  per  contra,  Foot  v.  Bronson,  4  Lans.  terest   in   the   controversy  may,   one   or 

47,  52,  in  which  such  a  union  of  different  more  of  them,  institute  an  action.     This, 

owners  was  held  proper;  citing  Keid  v.  however,  must  not  be  understood  as  allow- 

Gifford,  Hopk.  416  ;    Murray  v.  Hay,  1  ing  in  all  cases  two  or  more  persons  hav- 

Barb.  Ch.  59 ;  Brady  v.  Weeks,  3  Barb,  ing  separate  causes  of  action  against  the 

157.  same  defendant,  though  arising  out  of  the 

'''  Upington  v.  Oviatt,  24  Ohio  St.  232,  same   transaction,    to   unite   and   pursue 

247  ;  Glenn  v.  Waddell,  23  Ohio  St.  605.  their  remedies  in   one   action.      Several 

3  Tate  V.  Ohio  &  Miss.  R.  K.,  10  Ind.  plaintiffs  in  one  complaint  cannot  demand 
174.  The  company  had  raised  an  em-  several  matters  of  relief  which  are  plainly 
bankment  and  trestle-work  in  such  a  man-  distinct  and  unconnected.  But  when  one 
ner  as  to  cut  off  access  to  the  lots  owned  general  right  is  claimed,  when  there  is 
by  the  eleven  plaintiffs.  The  prayer  was  one  common  interest  among  the  plaintiff's 
that  the  company  be  compelled  to  change  centring  in  the  point  in  issue  in  the  cause, 
or  to  remove  its  structure.  On  demurrer  the  objection  of  improper  parties  cannot 
by  the  defendant,  the  court,  per  Davison  be  maintained.  .  .  .  These  plaintiffs, 
J.,  said  :  "  The  only  question  is,  had  the  though  not  united  in  interest  with  each 
plaintiffs  a  right  to  join  in  the  action  ?  "  other,  claim  one  general  right  to  be  re- 
Quoting  the  provisions  of  the  code  in  re-  lieved  from  a  nuisance  which  alike  affects 
lation  to  parties,  he  declares  that  they  all  of  them." 


318  CIVIL    REMEDIES. 

special  objects,  an  assessment  for  some  local  improvement,  a 
municipal  bonding  in  aid  of  some  quasi  pul)lic  enterprise,  and 
numerous  other  like  proceedings  which  create  a  public  or  muni- 
cipal debt.  Such  actions  are  permitted,  and  are  freely  used  in 
most  of  the  States,  although  not  allowed  in  New  York  and  a  few 
others.  AVhere  suits  of  this  character  are  sustained  by  the  courts, 
the  question  has  arisen,  whether  two  or  more  tax-payers  having 
distinct  freeholds,  or  distinct  pieces  of  property  subject  to  the  bur- 
den,, and  who  have  no  connection  except  in  the  common  wrong 
and  in  the  like  relief  demanded  by  all,  may  unite  in  the  action, 
or  whether  one  may  sue  on  behalf  of  all,  or  finally,  whether  each 
must  bring  a  separate  suit  to  free  his  own  property  from  the 
wrongful  incumbrance.  It  would  seem,  upon  the  principle  of 
the  decision  last  quoted,  tliat  such  a  joinder  was  not  only  proper, 
but  was  in  every  way  expedient ;  but  the  cases  have  not  been 
unanimous  upon  the  point,  and  some  of  them  have  distinctl}^  pro- 
nounced against  a  joint  proceeding.  In  Wisconsin,  where  a  num- 
ber of  freeholders,  owning  distinct  lots  of  land,  and  having  no 
connection  except  that  they  were  all  residents  of  the  municipality, 
and  whose  personal  property  had  been  levied  upon  for  the  tax, 
and^dvertised  for  sale,  united  in  an  action  to  set  aside  the  entire 
proceedings  of  the  local  authorities,  and  to  procure  the  tax  and 
all  steps  taken  in  relation  to  it  to  be  declared  void,  and  to  restrain 
the  sale  of  their  property,  it  was  held  that  these  plaintiffs  could 
not  join  in  a  suit  merely  to  prevent  the  sale  of  their  property 
because  their  interests  were  entirely  several ;  but  that  they  could 
unite  in  an  action  to  avoid  and  set  aside  the  proceedings  of  the 
municipal  authorities,  and  that  the  court  having  thus  acquired 
jurisdiction,  could  go  on  and  administer  complete  relief.^  In 
another  case,  two  plaintiffs  owning  distinct  lots  in  severalty,  and 
suing  on  behalf  of  all  other  tax-payers  of  the  city,  brought  an  action 
to  set  aside  a  local  assessment  and  tax  made  and  levied  by  the 
city  authorities,  and  to  restrain  the  sale  of  their  lots.  It  was 
held  that  they  could  not  maintain  the  joint  action.  The  court 
said,  if  the  tax  was  illegal  there  Avas  an  apparent  cloud  upon  each 
lot,  and  each  plaintiff  was  interested  only  in  removing  this  cloud 
from  his  own  land  ;  each  and  all  might  be  interested  in  the  legal 
question  involved  in  the  suit ;  for  if  one  had  a  right  to  remove  the 

1  Peck  V.   School  District  No.  4,  21  Wise.  516. 


PLAINTIFFS    IN    EQUITABLE    ACTIONS.  319 

cloiul  and  to  enjoin  the  assessment  as  illegal,  for  the  same  reasons 
and  upon  the   same   evidence,  each  of  the  others  might  obtain 
relief;    but  there   was  no  such   common   pecuniar}^  interest   as 
authorized  them  to  unite  in  one  suit  and  obtain  the  relief  de- 
manded ;  each  could  sue  alone,  and  the  others  were  not  necessary 
parties ;  this  was  not  an  action  respecting  a  common  fund,  nor  to 
assert  a  common  right,  nor  to  restrain  acts  injurious  to  property 
in  which  all  the  plaintiffs  had   a  common  interest. ^     In   Ohio, 
two  or  more  owners  of  separate  lots  assessed  for  a  local  improve- 
ment ma}^  unite  in  an  action  to  restrain  the  enforcement  and  col- 
lection, when  the  tax  is  claimed  for  the  same  reason  to  be  invalid 
as  to  all.2     In  Kansas  a  distinction  is  made  depending  upon  the 
nature  of  the   tax  itself.     If  the  tax  is  wholly  illegal,  that  is, 
fllegal  as  applied  to  all  persons  and  property,  —  as,  for  example,  a 
tax  to  pay  the  interest  on  illegal  bonds,  —  any  number  of  tax- 
payers may  unite  in  the  action.^     If,  however,  the  tax  is  valid  as 
a  tax,  —  as,  for  example,  the  ordinary  county  or  State  tax,  —  and 
becomes  illegal  for  some  cause  only  as  it  aj)plies  to  certain  per- 
sons or  property,   then  each  person  severally  interested  as  the 
ow^ner  of  distinct  and  separate  lots  of  land  must  sue  alone  ;  there 
can  be  no  joinder  by  tax-payers  who  have  no  common  property.^ 
In  Iowa  it  has  been  recently  held  that  tax-payers  owning  separate 
property  cannot  unite,  nor  can  one  sue  on  behalf  of  all  others 
similarly  situated,  in  an  action  to  restrain  the  enforcement  and 
collection  of  an  illegal  tax,  but  each  must  bring  an  action  for 
himself.^ 

§  270.  A  few  other  miscellaneous  cases  of  distinct  interests 
may  be  mentioned.  When  several  persons  have  simultaneous  but 
entirely  separate  mechanic's  liens  upon  the  premises  of  the  same 
person  for  work  done  and  materials  furnished  by  them,  they  cannot 
all,  nor  can  any  two  or  more  of  them  unite  in  an  action  brought 
to  enforce  and  foreclose  such  liens  under  the  statute.'^     Under  the 

1  Barnes  v.  City  of  Beloit,  19  Wise.  93,  326  ;  Gilmore  v.  Norton,  10  Ivans.  491 ; 
94,  per  Downer  J.     It  is  impossible  to  Gilmore  v.  Fox,  10  Kans.  509. 
reconcile  the  reasoning  in  these  two  cases,  *  Hudson   i:  Commissioners,    &c.,    12 
nor  the   conclusions   which    they   reach.  Kans.  140,  146,  147. 

See  also  iN'ewconib   v.  Horton,  18   Wise.  ^  Fleming  v.  Mershon,  36  Iowa,  413, 

566,  which  maintains  the  same  doctrine  416-420.     The  question  was  carefully  ex- 

as  Barnes  v.  Beloit.  amined  with  a  reference  to  numei-ous  de- 

2  Upington  v.  Oviatt,  24  Ohio  St.  232,  cisions  of  equity  courts.  Cole  J.  dissented 
247  ;  Glenn  v.  Waddell,  23  Ohio  St.  605.  in  a  very  able  opinion  containing  a  review 

3  Bridge  Co.  v.  Wyandotte,  10  Kans.  of  all  the  authorities,  pp.  421-427. 

«  Harsh  v.  Morgan,  1  Kans.  293,  298. 


320  CIVIL   REMEDIES. 

construction  given  to  statutes  of  Oliio,  making  tlie  shareholders 
in  corporations  liable  in  cei'tain  contingencies  to  the  creditors  of 
the  companies,  it  is  held  that  a  suit  should  be  brought  by  or  for 
all  the  creditors  who  come  within  the  conditions  ;  that  is,  all 
these  creditors  should  actually  be  made  plaintiffs,  or  the  action 
should  be  in  the  name  of  one  for  the  l^enefit  of  all.^ 


SECTION  SEVENTH. 

WHO   MAY  BE   JOINED   AS   DEFENDANTS. 

§  271.  The  sections  of  the  various  State  codes  and  practice 
acts  which  prescribe  rules  for  the  proper  selection  of  defendant^ 
are  as  follows :  one  of  them  is  found  in  all  the  statutes,  and 
expresses  the  doctrine  in  its  general  form.  "  Any  person  may 
be  made  a  defendant  who  has  or  claims  an  interest  in  the  contro- 
versy adverse  to  the  plaintiff,  or  who  is  a  necessary  party  to  a 
complete  determination,  or  settlement  of  the  questions  involved 
therein."  ^  To  this  general  declaration  there  is  added  in  a  few 
States  the  following  particular  clause  :  "  And  in  an  action  to 
recover  the  possession  of  real  estate,  the  landlord  and  tenant 
thereof  may  be  joined  as  defendants,  and  any  person  claiming 
title  or  a  right  of  possession  to  real  estate  may  be  made  a  party 
plaintiff  or  defendant,  as  the  case  may  require,  to  any  such 
action."  ^  The  codes  also  all  contain  the  following  provisions, 
either  embraced  in  a  single  section  or  separated  into  two,  namely  : 
"  Of  the  parties  to  the  action,  those  who  are  united  in  interest 
must  be  joined  as  plaintiffs  or  defendants;  but  if  the  consent  of 
any  one  who  should  have  been  joined  as  plaintiff  cannot  be 
obtained,  he  may  be  made  a  defendant,  the  reason  thereof  being 
stated  in  the  complaint  [or  petition].  [And]  When  the  question 
is  one  of  common  or  general  interest  of  many  persons,  or  when 
the  parties  are  very  numerous,  and  it  may  be  impracticable  to 
bring  them  all  before  the  court,  one  or  more  may  sue  or  defend 

1  Unisted  v.  Buskirk,  17  Oliio  St.  113.    Nevada,  §  13 ;  Oregon,  §  380,  but  applied 

2  New  York,  §  118 ;  Ohio,  §  35 ;  Indiana,  only  to  equitable  actions  ;  Dacotali,  §  71  ; 
§  18  ;  Kansas,  §  3G ;  California,  §  379 ;  Washington,  §  14 ;  Idaho,  §  13 ;  Wyo- 
Missouri,  art.  1,  §  5  ;  Wisconsin,  ch.  123,     ming,  §  41 ;  Montana,  §  13. 

§  rj;  Florida,  §  69;  Iowa,  §  2547;  Ne-  ^  New  York,  §  118;    South  Carolina, 

braska,   §  41;    Kentucky,  §  35;    South     §  141;  North  Carolina,  §61;  California, 
Carolina,  §  141  ;    North   Carolina,   §  61;     §  379. 


WHO    MAY    BE    JOINED    AS    DEFENDANTS.  321 

for  the  benefit  of  the  whole."  ^  Finally,  a  section  is  found  in 
every  code  particularly  referring  to  the  case  of  persons  severally 
liable  on  the  same  instrument,  of  which  the  ordinary  form  is  as 
follows :  "  Persons  severally  [and  immediately,  Indiana]  liable 
upon  the  same  obligation  or  instrument,  including  the  parties  to 
bills  of  exchange  and  promissory  notes,  may  all  or  any  of  them 
be  included  in  the  same  action  at  the  option  of  the  plaintiff."  ^ 

§  272.  The  subject-matter  of  the  present  section  is  the  interpre- 
tation of  the  general  clauses  of  the  statute  quoted  above,  —  the 
doctrine  of  parties  defendant  in  its  general  scope  and  import,  — 
the  general  rules  which  prescribe  the  choice  and  direct  the  joinder 
of  defendants  in  civil  actions  of  all  kinds,  whether  legal  or  equi- 
table. The  special  cases  described  in  the  other  clauses  of  the 
statute,  —  namely,  that  of  one  person  suing  or  being  sued  as  the 
representative  of  others,  and  that  of  persons  severally  liable  upon 
the  same  instrument,  —  will  be  separately  discussed  in  the  two 
sections  which  follow  the  present  one.  The  doctrine  of  parties, 
and  especially  of  parties  defendant,  in  its  entirety,  is  intimately 
connected  with  that  of  judgments,  and  cannot  be  exhaustively 
treated,  without  a  discussion  also  of  the  latter  topic.     Many  im- 

1  These  provisions  are  tiius  found  as  a  Nevada,  Idalio,  Wyoming,  and  Montana 

single  section  in  New   York,  §  119;  In-  is   also  the  same  as  that   in   California, 

diana,  §19;  California,  §  382  ;  Wisconsin,  For    the   corresponding   sections   in    the 

ch.  123,  §  20;  Florida,  §  70;  South  Caro-  codes  of  Kentucky,  Iowa,  and  Missouri, 

Una,  §  142  ;  North  Carolina,  §  62  ;  Nevada,  see   infra,   §   403.      In    these   codes   the 

§  14 ;    Oregon,    §  381 ;    Dacotah,    §  72 ;  change  in  the    common-law  doctrine    is 

Washington,    §§    14,    15  ;    Idaho,    §    14  ;  carried  to  a  much  greater  length  ;  the  dis- 

Wyoming,  §  42;  Montana,  §  14.     In  the  tinctions  between  joint,  joint  and  several, 

following  States  they  are  separated  into  and  several  liabilities  are   utterly  abro- 

two  sections,   corresponding  to  the   two  gated.     The  same  radical  change  is  made 

paragraphs  of  the  text :  Ohio,  §§  36,  37;  in  North  Carolina.    "§63o.  In  all  cases 

Kansas,  §§  37,  38  ;  Iowa,  §§  2548,  2549  ;  of  joint  contract  of  copartners  in  trade  or 

Nebraska,   §§  42,  43 ;    Kentucky,  §§   36,  others,  suits  may  be  brought  and  prose- 

37.     The  Missouri  code  contains  only  the  cuted  on  the  same  against  all  or  any  num- 

first  paragraph,  as  art.  1,  §  6,  the  same  as  ber  of  the  persons  making  such  contract." 

§  36  of  the  Ohio  code.  In  Nevada,  §  14,  and  Wyoming,  §  42,  it  is 

^  New   York,  §  120;    Kansas,  §   39;  provided  that  "joint  tenants,  tenants  in 

Minnesota,  §  35 ;  Wisconsin,  ch.  123,  §  21  ;  common,  or  copartners,  or  any  number  less 

Nebraska,   §   44;    Florida,   §   71;    Ohio,  than  all,  may  jointly  or  severally"  sue 

§  38  ;  Indiana,  §  20  ;  Oregon,  §  36  ;  South  and  be  sued.     A  similar  clause  is  found  in 

Carolina,  §   143  ;  North  Carolina,  §  63 ;  the    California   code,    §  384,  except  that 

Nevada,  §  15;  Dacotah,  §  73  ;  Washington,  "  coparceners  "  is  substituted  for  "  copart- 

§16;  Idaho,  §15;  Wyoming,  §43;  Mon-  ners."       Placing     "copartners"   in     the 

tana,  §  15.    In  California,  §   383,  is  the  same  position   as   "  joint  tenants "    and 

same,  adding,  "  and  sureties  on  the  same  "  tenants  in  common,"  is  a  very  strange 

or  separate  instruments,"  after  the  words  provision,   and    was   doubtless   an    over- 

"  promissory  notes."      The   provision  in  sight. 

21 


322  CIVIL    REMEDIES. 

portant  decisions,  and  even  certain  practical  rules  which  mi^ht 
naturally  liave  been  introduced  in  this  connection,  are,  therefore, 
postponed  for  the  present,  and  will  appear  in  a  subsequent  chap- 
ter. Joint  and  several  rights  and  liabilities  involve  both  the 
questions  of  joint  and  several  judgments,  and  of  the  union  and 
severance  of  parties  plaintiff  and  defendant.  It  would  only  pro- 
duce confusion,  however,  if  we  should  anticipate  the  regular 
order  of  the  subject-matter,  and  should  attempt  to  combine  in  a 
single  discussion  all  the  particular  topics  which  enter  into  the 
theory  of  joint  and  of  several  liabilities.  In  carrying  out  the  de- 
sign of  the  present  section,  I  shall  follow  the  general  plan  adopted 
in  the  one  last  preceding,  and  shall  (1)  state  in  a  concise  manner 
the  established  rules  of  the  common  law  concerning  the  selection 
and  joinder  of  defendants  in  legal  actions ;  (2)  determine  the 
general  principles  introduced  by  the  reform  legislation,  and  the 
true  theory  of  its  interpretation ;  and  (3)  exhibit  the  application 
of  these  principles  made  by  the  decided  cases,  explain  the  changes 
which  have  been  made  in  the  former  system,  and  ascertain  the 
practical  rules  as  to  parties  defendant  as  the}'  now  exist. 

The  Common-law  Doctrines  and  Rules. 

§  273.  Whenever  any  liability  rests  upon  two  or  more  persons 
as  the  consec|uence  of  the  same  act  or  event,  the  common  law  re- 
garded such  liability  in  general  as  either  joint,  joint  and  several, 
or  several.  This  division  had  originally  a  twofold  relation  ;  for  it 
affected  both  the  external  forms  and  modes  of  enforcing  the  lia- 
bility by  actions  at  law,  and  also  the  essential  nature  of  the 
liability  independent  of  an}-  such  mere  methods  of  enforcement. 
In  other  words,  these  three  classes  differed  from  each  other  in 
respect  to  the  joining  or  the  not  joining  of  the  jjersons  liable  in  a 
single  action.  This  was  doubtless  the  most  important  element  of 
difference  among  them  ;  it  remained  unchanged  while  the  com- 
mon-law procedure  existed  ;  and  the  principal  question  to  be  de- 
termined by  the  present  discussion  is,  whether  it  has  been  changed 
by  the  provisions  of  the  new  American  system.  But,  in  addition 
to  this  element  of  difference,  which  related  solely  to  the  mode  of 
enforcement,  there  was  another  still  which  related  to  the  existence 
and  duration  —  that  is,  to  the  very  being  —  of  the  liability.  Joint 
liability  was  distinguished  from  the  other  two  classes  in  this,  that, 


COMMON-LAW    RULES    AS    TO    DEFENDANTS.  323 

at  the  death  of  one  of  the  persons  upon  whom  the  jomt  duty 
rested,  such  obligation  absohitely  ended  as  to  his  estate  and  rep- 
resentatives, and  became  entirely  concentrated,  as  it  were,  upon 
the  survivors.     As  one  after  another  died,  the  same  process  con- 
tinued, until  the  whole  liability  rested,  as  a  sole  obligation,  upon 
the  last  survivor  of  all,  and,  upon  his  death,  passed  to  his  estate 
and    personal   representatives.      This   doctrine    of  survivorship 
prevailed  at  the  common  law,  and,  at  an  early  day,  before  the 
innovations  made  by  equity,  it  was  the  ordinary  practical  rule 
controlling  the  relations  between  debtor  and  creditor  ;  so  that  if 
one  of  two  joint  debtors  died,  the  creditor  had  absolutely  no  re- 
course of  any  kind  except'  against  the  person  and  property  of  the 
survivor,  the  estate  of  the  deceased  debtor  being  freed  from  all 
claim  whatsoever.     Even  after  relief  became  possible  from  the 
courts  of  equity,  the  doctrine  continued  to  prevail  under  exactly 
the  same  form  in  courts  of  law  and  in  legal  actions,  so  that  such 
actions  could  only  be  maintained  against  the  survivors  ;  and  if 
the  creditor  w^as  restricted  to  the  law  courts  and  to  the  modes  of 
remedy  which  they  furnished,  the   ancient  rule   applied  to  him 
with  full  force  and  effect.     The  relief  granted  by  equity,  how- 
ever, had  long  rendered  this  rule  a  mere  matter  of  form.     The 
primitive  doctrine  had  long  been  practically  abandoned  ;  the  lia- 
bility was  not,  in  fact,  confined  to  the  survivor  of  the  joint  debt- 
ors ;  the  estate  of  the  deceased  might  be  held  responsible ;  only 
the  creditor  must  pursue  his  remedy  in  a  court  of  equity,  instead 
of  a  court  of  law.     This  result  was  natural  and  proper  enough  as 
long  as  two  separate  species  of  tribunals  and  two  distinct  systems 
of  procedure  were  retained  ;  but  that  the  same  result  should  con- 
tinue after  the  jurisdictions  had  been  consolidated  into  one,  and 
after  all  distinctions  between  actions  at  law  and  suits  in  equity 
had  been  abolished,  and  one  mode  had  been  established  for  the 
pursuit  of  all  civil  remedies,  is,  beyond  the  power  of  expression, 
absurd. 

§  274.  Such  being  the  two  generic  elements  of  distinction  be- 
tween the  three  classes  of  liabilities  established  by  the  common 
law,  it  is  of  the  utmost  importance  to  determine  the  marks  which 
distinguish  one  from  the  other,  and  to  ascertain  in  this  manner 
what  liabilities  are  joint,  what  joint  and  several,  and  what  several. 
Liability  may  arise  either  from  contract,  or  from  some  act  which 
is  not  a  contract,  and  to  which  the  name  tort  has  been  given  by 


324  CIVIL    REMEDIES. 

English  and  American  writers  and  judges.  Little  difficulty  exists 
in  reference  to  liabilities  arising  from  torts  ;  it  will  be  seen  in 
the  sequel  that  they  are  not,  in  general,  joint  in  their  nature.  In 
respect  to  liabilities  springing  from  contract,  the  difficulty  is  much 
greater,  as  there  is  no  such  simi)le  and  comprehensive  rule.  The 
discussion  found  in  the  preceding  section, ^  concerning  joint  and 
several  ri</Jtts,  applies  as  well  in  its  general  features  to  the  subject 
of  liabilities  ;  the  same  essential  principles  are  controlling  in  either 
case.  While,  however,  the  nature  of  the  interest,  rather  than  the 
form  of  the  promise  or  obligation,  is  the  ultimate  criterion  by 
which  to  ascertain  whether  the  right  is  several  or  joint,  the  form 
of  the  promise  or  obligation  alone  determines  the  character  of  the 
liahility  when  the  contract  is  exj)ress,  and  the  intention  of  the 
parties  gathered  from  all  the  surrounding  circumstances,  when  the 
contract  is  implied. 

§  275.  Applying  this  test,  the  following  are  the  general  prin- 
ciples, stated  in  a  very  concise  manner,  which  define  the  nature  of 
liabilities  arising  from  contract,  and  separate  them  into  the  three 
groups  or  classes  already  mentioned.  Whenever  a  liability  rest- 
ing upon  two  or  more  persons  is  created  by  contract,  the  presump- 
tion is  that  such  liability  is  joint,  —  that  is  to  say,  it  is  joint,  unless 
express  words  and  terms  of  the  contract  make  it  several,  or  joint 
and  several.  The  tendency  or  inclination  of  the  law  is  in  favor  of 
joint  liabilities  ;  no  express  language  is  necessary  to  produce  that 
quality  ;  but,  on  the  other  hand,  some  special  terms  or  words  are 
requisite  to  bring  the  liability  into  either  of  the  two  other  classes.^ 
An  ancient  work  of  high  authorit}-  says  :  "  If  two,  three,  or  more 
bind  themselves  in  an  obligation  thus  ohligcmius  nos  [that  is,  we 
bind  ourselves,  we  undertake,  we  promise],  and  say  no  more,  the 
obligation  is,  and  shall  be,  taken  to  be  joint  onl}^  and  not  several."  ^ 
If  two  or  more  contract  with  the  same  person  to  do  or  to  forbear 
from  one  and  the  same  thing,  their  liability  is  joint,  in  the  absence 
of  any  special  words  to  show  that  a  different  one  is  intended. 
This  rule  is  emphatically  true  in  cases  of  implied  liabilities.* 
Whether  the  liability  is  joint,  joint  and  several,  or  several,  de- 
pends upon  the  terms  of  the  contract,  if  express  ;  upon  the  inten- 
tion of  the  parties  gathered  from  the  circumstances,  if  implied.^ 

1  See  s»/5ra,  §§  185,  186.  i  1   Ch.    PI.    (Springfield    ed.,   1840), 

2  1  Parsons  on  Cent.,  p.  11,  and  cases    p.  41. 

cited.  5  Peckham   v.  North   Parish,  16  Pick. 

3  Shepherd's  Touchstone,  p.  375.  See  274,  283,  per  Wilde  J. ;  1  Parsons  on  Cont., 
Ehle  V.  Purdy,  6  Wend.  62y.  p.  11. 


COMMON-LAW   RULES   AS   TO    DEFENDANTS.  325 

§  276.  A  joint  and  several  liability  generally  arises  from  express 
language  of  the  agreement,  such  as,  "  we  jointly  and  severally 
promise."  If,  however,  a  promise  is  written  in  the  singular 
number,  but  is  actually  made  by  two  or  more  as  the  obligors  or 
promisors,  their  liability  is  joint  and  several ;  as,  for  example,  a 
promissory  note  in  the  form,  "  I  promise  to  pay,"  &c.,  but  signed 
by  several  persons  as  the  makers.^  This  particular  species  of 
liability  seems  to  demand  express  language  of  some  sort  for  its 
creation ;  it  is  never  found  as  a  feature  of  implied  contracts, 
unless,  perhaps,  in  those  instances  where  the  injured  party  may,  at 
his  election,  regard  the  wrong  done  him  as  a  breach  of  implied 
contract,  or  as  a  tort ;  but  in  these  instances  it  will  be  found 
that  the  fundamental  element  of  the  liabilit}^  is  tort,  and  not  con- 
tract. Having  determined  into  which  of  the  three  classes  a  given 
liability  falls  by  the  application  of  the  foregoing  principles,  we 
are  next  to  consider  the  common-law  rules  which  control  the 
union  or  severance  of  the  parties  thereto  as  defendants  in  actions 
at  law.  I  shall  consider  separately  actions  ex  contractu  and  actions 
ex  delicto. 

§  277.  /.  Actions  ex  contractu,  or  those  in  which  the  liability  arises 
from  contract.  When  the  liability  is  joint,  all  the  persons  upon 
whom  it  rests  must  be  united  as  defendants  in  an  action  brought 
upon  the  contract.  This  rule  is  general,  and  applies  to  under- 
takings, obligations,  and  promises  of  all  possible  descriptions.^ 
There  are,  however,  two  apparent,  if  not  real,  exceptions.  Dor- 
mant partners  need  not  be  made  defendants  in  an  action  against 
the  firm,  although  of  course  they  may  be  joined.^  Also,  when 
infants  or  married  women  have  in  form  contracted  jointly  with 
persons  sui  juris.,  their  names  should  be  omitted  as  defendants  in 
an  action  upon  the  contract,  and  the  suit  should  be  brought 
against  the  parties  alone  who  were  able  to  contract.'*  The  last 
rule  in  relation  to  married  women  has  been  abrogated  in  all 
those  States  which  now  permit  wives  to  engage  in  business  and 
to  bind  themselves  by  contract.  The  modern  legislation  on  this 
subject  will  be  stated,  and  its  results  explained,  in  a  subsequent 

1  Sayor  v.  Clayton,  1  Lutw.  695.  697,         2  j  c^.  PL,  p.  42,   and   cases   cited; 

per  PowellJ. ;  Van  Alstynef.  Van  Slyck,  1   Wras.    Saund.   153,  n.   (1);  lb.  291  i, 

10  Barb.   383;    Henimenway  u.  Stone,  7  n.  (4). 

Mass.  58.    But  see,  for  a  peculiar  case,  in         ^1  Ch.  PI.,  p.  43,  and  cases  cited, 
which,  from  the  special  provisions  of  the         *  Ibid, 
contract,  this  rule  was  not  applied,  Slater 
V.  Magraw,  12  Gill  &  Johns.  265. 


326  CIVIL    REMEDIES. 

portion  of  the  present  section. ^  When  the  hahility  is  a  several 
one,  each  of  the  obligors  or  promisors,  or  persons  upon  whom  the 
obligation  rests,  must  be  sued  in  a  separate  and  distinct  action .^ 
Finally,  when  the  liability  is  joint  and  several,  the  creditor  has  a 
choice  of  two  modes  :  he  may  treat  the  liability  as  a  joint  one, 
and  sue  all  the  parties  subject  to  it  in  a  single  action,  or  he  may 
treat  it  as  a  several  one,  and  sue  each  of  the  parties  subject  to  it 
in  a  separate  action  ;  he  has  no  other  alternative,  and  cannot 
proceed  against  a  portion  more  than  one  but  less  than  all.^ 

§  278.  The  consequences  of  a  violation  of  these  various  rules 
were  very  serious.  The  error  might  consist  either  in  a  misjoinder 
—  the  uniting  too  many  parties,  or  in  a  noyijoinder  —  the  uniting 
too  few  parties  ;  they  will  be  considered  separately.  Indepen- 
dently of  any  statute  authorizing  a  suit  against  two  or  more  per- 
sons not  jointly  liable,*  a  legal  action,  brought  against  tAvo  or  more 
defendants,  necessarily  implied,  at  the  common  law,  that  the  per- 
sons thus  sued  were  jointly  liable,  or  at  least  that,  their  liability 
being  joint  and  several,  the  plaintiff  had  elected  to  treat  it  as  a 
joint  one.  In  an  action  upon  contract  against  two  or  more  de- 
fendants, it  must  appear,  therefore,  in  the  plaintiff's  pleadings, 
that  the  contract  is  a  joint  one,  and  this  fact  must  also  be  proved 
at  the  trial.  If  too  many  persons  have  been  made  defendants, 
and  this  mistake  appears  upon  the  face  of  the  pleading,  the  de- 
fendants may  either  demur,  move  in  arrest  of  judgment,  or 
have  a  reversal  on  a  writ  of  error ;  if  the  mistake  does  not  appear 
on  the  pleadings,  but  the  plaintiff  fails  to  prove  the  joint  under- 
taking or  promise  as  alleged,  he  will  be  nonsuited  at  the  trial.^ 
This  rule  was  applied  to  all  actions  that  were  brought  iqjoyi  a 
contract^  whatever  might  be  the  form  of  the  action ;  but  it  was 
not  applied  if  the  cause  of  action  was  really  and  primarily  a  tort, 
and  the  plaintiff  had  an  election  to  treat  it  as  the  breach  of  an 
implied  contract, — as,  for  example,  in  an  action  on  the  case 
against  common  carriers.^     The  general  effect  of  a  misjoinder,  as 

J  See  infra,  §§  318  et  seq.  *  As,  for  example,  the  statute  permit- 

■2  1  Ch.  PI.,  p.  43.  ting  the  maker  and  indorsers  of  a  prom- 

8  1  Ch.  PI.,  p.  43;  1  Parsons  on  Cent.,  issory  note,  and  the  drawer,  acceptor,  and 

p.  12 ;  Bae.  Abr.  Obligation,  D.  4  ;  2  Vin.  indorsers  of  a  bill  of  exchange  to  be  joined 

Abr.    08,   pi.    7;    Cabell  v.    Vaughan,    1  as  defendants. 

Wms.  Saimd.  291  e,  291  f,  n.  (4)  ;  P^ccles-  ^  1  Ch.  PI.,  p.  44,  and  cases  cited, 

ton    ('.    Clipsham,    1    Wms.    Saund.    153,  «  Ibid.  This  well  illustrates  the  nicety 

n.   (1);  Streatfield  v.   Halliday,  3  T.  R.  —verbal    nicety  —  of   distinctions    often 

782.  made  by  the  ancient  common-law  judges. 


COMMON-LAW    RULES    AS    TO    DEFENDANTS.  327 

above  stated,  followed,  at  the  common  law,  even  in  the  case  of  a 
married  woman  or  an  infant  being  made  a  codefendant,  who 
could  not  in  law  make  a  binding  contract.  Although  all  the 
defendants  may  have  physically  entered  into  the  agreement,  yet 
as  the  infant  or  married  woman  had  no  legal  capacity  to  make  it 
effective,  and  as  to  them  it  was  either  void  or  voidable,  their 
being  made  parties  was  a  case  of  misjoinder,  and  the  jilaintiff 
thereby  incurred  the  penalty  of  nonsuit.  Under  the  circum- 
stances thus  described,  the  proper  mode  for  the  plaintiff  to  pur- 
sue was  to  omit  the  married  woman  or  the  infant,  and  to  sue  only 
the  otlier  parties.  This  particular  rule,  however,  had  not  been 
followed  in  all  the  States,  even  prior  to  the  introduction  of  the 
new  system  ;  in  New  York,  and  in  several  other  commonwealths, 
the  plaintiff,  if  he  had  made  a  married  woman  or  an  infant  a 
party  defendant,  could  discontinue  as  to  such  person,  and  could 
proceed  with  his  action  against  the  other  defendants.^  If  one 
defendant  should  be  discharged  by  operation  of  law  after  the 
action  was  commenced,  as  by  a  discharge  in  bankruptcy,  &c.,  the 
plaintiff  could  discontinue  as  to  him,  and  the  suit  would  go  on  as 
to  the  others.^ 

§  279.  Nonjoinder.  The  consequences  of  a  nonjoinder  of  all 
the  persons  who  should  have  been  made  defendants,  were  by  no 
means  so  serious.  Tlie  objection  to  the  nonjoinder  of  defendants 
liable  to  be  sued  jointly  upon  contract,  or  as  sharers  in  the  profits 
of  real  estate,  could  only  be  taken  advantage  of  by  a  plea  in 
abatement,  which  should  state  the  names  and  residences  of  the 
parties  said  to  be  omitted.  In  default  of  this  mode  of  presenting 
the  defence,  the  objection  was  entirely  waived.^ 

§  280.  If  one  of  the  obligors  or  promisors  in  a  joint  contract 
dies,  the  liability  at  the  common  law  rests  upon  the  survivors 
only ;  none  passes  to  the  estate  of  the  deceased.  An  action  at 
law  can  therefore  be  maintained  only  against  the  survivors  or  the 
survivor.  When  the  last  survivor  dies,  his  personal  representa- 
tives are  the  only  possible  defendants  in  a  legal  action.^  If  the 
contract  is  joint  and  several,  death  does  not  produce  such  an 

The  ground  of  the  action  against  a  com-         ^  1  Ch.  PI.,  p  45,  and  cases  cited, 
mon   carrier   was   primarily    his   general  -  Ibid.  p.  46. 

duty  to  tlie  public,  and  a  breach  of  this  ^  iV)icl.  p.  46. 

duty   was  a   tort,  although   the  plaintiff  *  1  Ch.  PI.,  p.  50  ;  Bac.  Abr.,  Obligation, 

might,  if  he  chose,  bring  assumpsit.  D.  4  ;  Yorks  v.  Peck,  14  Barb.  644  ;  Foster 

V.  Hooper,  2  Mass.  572. 


328  CIVIL   REMEDIES. 

entire  effect ;  the  personal  representatives  of  the  deceased  party 
may  be  sued  separately,  but  not  jointly  with  the  survivors.  A 
joinder  of  these  parties  is  not  permitted,  because  against  the  repre- 
sentatives the  judgment  must  be  de  bonis  testatorls,  while  against 
the  survivors  it  must  be  de  bonis  propriis,  and  the  common  law 
does  not  tolerate  a  double  judgment  in  one  action. ^ 

§  281.  II.  Actions  ex  delicto,  or  those  in  which  the  liability  arises 
from  a  tort.  The  general  doctrine  is,  that  the  liability  arising  from 
torts  committed  by  two  or  more  is  joint  and  several  in  its 
nature,  or,  to  be  accurate,  it  resembles  a  joint  and  several  liability. 
The  exceptions  are  few.  Certain  personal  torts  are  of  such  a 
nature  that  they  cannot  be  committed  by  two  persons  jointly ; 
although  two  persons  might  commit  the  same  kind  of  tort  at  the 
same  exact  time,  upon  the  same  party,  they  would  not  commit 
the  one  identical  tort.  If  many  persons  should  unite  in  an 
assault  and  battery,  there  would  be  but  one  assault  and  battery, 
notwithstanding  the  number  of  the  wrongdoers ;  but  if  two 
should  utter  the  same  slanderous  words,  even  at  the  same  instant 
of  time,  there  would  be  two  slanders,  one  done  by  each.  Certain 
torts,  few  in  number,  are  therefore,  from  their  nature,  essentially 
several.  In  a  few  particular  instances,  torts  having  reference  to 
real  estate  are  essentially  joint.  In  pursuance  of  the  general 
rule,  as  given  above,  if  the  tort  is  of  such  a  nature  that  it  may  be 
committed  by  two  or  more  persons  in  combination,  the  injured 
party  may  bring  an  action  against  all  the  wrongdoers,  against 
any  number  of  them,  or  against  one  of  them,  or  may  bring  a  sep- 
arate action  against  each  one,  or  against  any  part  of  the  whole.^ 
The  liability  is  much  broader,  therefore,  than  one  which  is  simply 
joint  and  several.  If,  in  contemplation  of  law,  the  single  tort 
cannot  be  committed  by  two  or  more  together,  and  can  only  be  a 
different  tort  by  each,  a  separate  action  must  be  brought  against 
each  wrongdoer.^  When  tenants  in  common,  or  joint  tenants  of 
land,  are  liable  in  an  action  of  tort  for  anything  respecting  the 
land,  they  must  all  be  made  defendants  ;  and  if  one  onlj'  is  sued, 
he  may  plead  the  nonjoinder  of  the  others  in  abatement.^      If 

1  1  Ch.  V\.,  p.  50 ;  1  Parsons  on  Cont.,    Abr.,   Actions   in  General,  C. ;  2  Wms. 
p.  29;    Towers   v.   Moore,   2   Vem.  99.     Saund.  117«. 

This  reason  given  for  the  common-law  <*  Ibid. ;  Thomas  v.  Rumsey,  6  Johns, 
rule  is  merely  rtrlinl.     There  is,  of  course,     32. 

no  «c^H«/ ditticiilty  in  the  way  of  such  a  *  1  Ch.  PI.,  p.  87;  Bac.  Abr.,  Joint 
division  in  the  judgment.  Ten.,  K. 

2  1  Ch.  PI.,  p.  85,  and  cases  cited ;  Bac. 


COMMON-LAW   EULES    AS   TO    DEFENDANTS.  329 

two  or  more  persons  are  sued  jointly  for  trespass  or  conversion,  a 
joint  taking  must  be  proved.^ 

§  282.  When  persons  are  sued  jointly  for  a  tort  which  cannot 
be  joint,  they  may  demur  ;  or,  if  a  verdict  has  been  given  against 
all,  the  judgment  may  be  arrested  or  reversed  on  error.  But  the 
plaintiff  may  have  a  verdict  against  one,  and  discontinue  as  to  the 
other.2  In  all  other  cases  where  several  persons  may  be  sued 
jointly  for  a  tort,  the  misjoinder  of  defendants  in  an  action  ex 
delicto  does  not  defeat  the  recovery,  for  a  verdict  may  be  given 
against  some  and  in  favor  of  the  others.  There  can,  of  course, 
be  no  objection  for  a  nonjoinder  in  such  cases,  for  the  plaintiff 
may  sue  as  many  of  the  wrongdoers  as  he  pleases.'^  The  last 
rule  applies,  however,  to  torts  only  which  are  unconnected  ivith 
contract.  If  an  action  in  form  for  a  tort  is  really  based  upon  the 
non-performance  of  a  contract,  the  rules  as  to  actions  on  con- 
tract control,  for  the  plaintiff  cannot  change  the  rules  of  law 
as  to  the  liability  of  defendants  by  merely  changing  the  form  or 
kind  of  action  which  he  brings.'*  In  actions  of  tort  against  common 
carriers  and  innkeepers,  the  general  rule  before  stated  is  strictly 
enforced,  for  their  liability  is  primarily  founded  upon  their  general 
common-law  duty,  and  not  upon  the  contract  made  with  the  ship- 
per or  the  guest.  If  sued,  therefore,  in  an  action  for  negligent 
loss  or  injury  to  goods,  they  cannot  object  on  account  of  any  non- 
joinder ;  but  if  sued  in  an  action  founded  upon  their  implied 
or  express  contract  to  carry  or  keep  the  goods  safely,  such  an 
objection  would  be  available.^  The  theory  is,  that  the  liability  of 
the  common  carrier,  or  of  the  innkeepeer,  does  not  arise  from 
contract,  but  the  plaintiff  may  elect  to  proceed  upon  the  con- 
tract ;  in  the  other  cases,  the  primary  liability  does  spring  from 
contract,  but  the  plaintiff  may  elect  to  sue  on  the  tort. 

§  283.  III.  Actions  against  husband  and  tvife.  The  following 
are  the  common-law  rules  in  respect  to  actions  against  the  hus- 
band and  wife,  or  the  husband  alone,  in  relation  to  claims  orig- 
inating from  some  act  or  default  of  the  wife.  The  wife  could 
under  no  circumstances  be  sued  alone  at  law.^     When  a  woman, 

1  1  Ch.  PI.,  p.  86,  and  cases  cited.  Wend.  562  ;  Russell  v.  Tomlinson,  2  Conn. 

2  1  Ch.  PI.,  p.  86 ;  Bac.  Abr.,  Actions     206 ;  Adams  v.  Hall,  2  Vt.  9. 

in  General,  C. ;  2  Wms.  Saund.  117  h.  (n).  ^  i  ch.  PL,  p.  87,  and  cases  cited. 

3  1  Ch.  PI.,  p.  86.     A  joint  action  is  ^  Ibid. 

not  possible  against  two  separate  owners  ^  1  Ch.  PI.,  p.  57,  and  cases  cited  ;  Com. 

of  dogs  which  have  killed  the  plaintiffs'    Dig.  Plead.,  2  A.  1. 
sheep.     Van    Steenburgh    v.  Tobias,  17 


330  CIVIL    REMEDIES. 

lial)le  upon  a  contract,  marries,  the  husband  and  wife  must  during 
the  marriage  be  sued  jointly,  even  thougJi  he  has  expressly  prom- 
ised to  pay  the  debt  or  to  perform  the  contract.^  If  a  lease  was 
made  by  the  wife  when  single,  and  rent  thereon  falls  due  after  the 
marriage,  or  if  an}"  other  contract  so  made  by  her  is  broken,  so 
that  a  right  of  action  arises  after  the  marriage,  the  action  may  be 
either  brought  against  both  or  against  the  husband  alone.^  The 
common  law  did  not  permit  the  wife  to  create  any  liabilit)'  by  her 
own  contract  during  the  marriage  ;  any  contract  which  she  could 
enter  into  so  that  it  would  be  binding  at  law,  would  necessarily 
be  the  contract  of  her  husband^  made  by  her  as  his  agent,  and  he 
alone  would  be  liable  to  an  action  thereon.  If  the  wife  had 
committed  any  torts  while  single,  or  if  she  committed  au}^  during 
the  marriage,  the  action  in  respect  of  them  must  be  against  her- 
self and  her  husband  jointly  ;  ^  except  in  the  case  where,  the 
wrongful  act  being  done  in  his  presence  and  by  his  direction,  she 
was  regarded  as  acting  under  compulsion,  and  free  from  liability, 
and  the  action  could  only  be  brought  against  him.* 

The  General  Principles  of  the  Reformed  Procedure  in  reference 
to  Parties  Pefendmit ;  the  True  Theory  of  Interiyretation. 

§  284.  The  foregoing  are  the  doctrines  and  rules  as  to  parties 
defendant  in  legal  actions,  which  were  firmly  established  as  part 
of  the  common  law  prior  to  any  statutory  change,  and  especially 
prior  to  the  great  change  introduced  by  the  codes  which  inaugu- 
rated the  reformed  American  procedure  in  many  of  the  States.  It 
should  be  remembered  that  this  statement  relates  solely  to  actions 
at  law,  and  does  not  apply  to  suits  prosecuted  in  tribunals  having 
an  equitable  jurisdiction  and  following  equitable  methods.  The 
practical  question  which  now  presents  itself,  and  which  I  shall 
attempt  to  answer,  is  :  How  far  have  these  common-law  doctrines 
and  rules  as  to  parties  defendant  in  legal  actions  been  retained,  and 
how  far  entirely  abrogated  or  partially  modified,  in  judicial  pro- 
ceedings of  the  same  nature,  by  the  provisions  of  the  new 
system  ?  This  question  assumes  that  some  actions  are  still  legal 
in  their  nature,  and  some  are  equitable,  although  the  forms  of  all 

1  Ibid. ;  Bac.  Abr.,  Baron  and  Feme,  L.     and   Feme,  L. ;   Cora.  Dig.,  Baron   and 

a  1  Ch.  PI.,  p.  58,  and  cases  cited.  Feme,  Y. ;  Co.  Litt.  351  6. 

8  1  Ch.  PL,  p.  92 ;  Bac.  Abr.,  Baron         *  Cassin  v.  Delany,  38  N.  Y.  178. 


GENERAL   DOCTRINES    AS    TO    DEFENDANTS.  331 

actions,  and  the  distinctions  between  them,  have  been  abolished. 
This  subject  has  been  sufficiently  discussed  in  the  preceding  chap- 
ter. It  is  universally  conceded  that  in  all  actions  which  are 
equitable  in  their  nature,  that  is,  which  are  brought  upon  an 
equitable  cause  of  action  and  seek  to  obtain  an  equitable  remedy, 
the  doctrines  of  equity  as  to  parties  are  as  fully  controlling  now 
as  they  were  when  tlie  jurisdiction  of  equity  was  separate  and 
distinct  from  that  of  law.  The  only  possible  occasion  for  doubt, 
therefore,  exists  in  relation  to  actions  which,  prior  to  the  reform, 
Avould  have  been  "  actions  at  law,"  and  which  now  may  perhaps 
be  generically  termed  "  legal  actions,"  because  they  are  based  upon 
a  legal  right  and  seek  to  obtain  a  legal  remedy.  What,  if  any, 
and  how  great  changes  in  these  ancient  rules  of  the  common  law 
as  to  parties  defendant,  have  the  provisions  of  the  various  codes 
recited  at  the  commencement  of  this  section,  made  in  such 
actions  ?  Do  these  general  clauses  embrace  and  in  their  full 
extent  apply  to  such  actions,  or  are  they  limited  in  their  oper- 
ation to  those  that  are  equitable  in  their  nature  ?  The  ancient 
rules  relating  to  defendants,  which  have  been  briefly  stated 
above,  are  certainly  left  in  active  oj)eration  at  the  present  time, 
and  now  as  well  as  formerly  determine  the  selection  of  the  par- 
ties in  legal  suits,  except  so  far  as  they  may  have  been  abrogated 
or  modified  by  the  legislation  referred  to.  In  other  words,  these 
rules  were  originally  the  sole  guides  in  the  construction  of  a  legal 
action ;  so  far  as  they  have  been  replaced  by  others,  they  no 
longer  exist ;  but  so  far  as  they  have  not  been  interfered  with 
and  changed,  they  are  left  as  efficacious  as  though  no  attempt  had 
been  made  to  reform  the  procedure.  The  question  is  thus 
reduced  to  this  shape :  To  how  great  an  extent  have  these  rules 
been  abolished  or  altered,  and  to  how  great  an  extent  are  they 
unchanged  ? 

§  285.  In  discussing  and  answering  this  question,  I  shall  follow 
the  order  adopted  in  the  last  preceding  section  (sixth),  while 
pursuing  a  similar  inquiry  in  respect  to  parties  plaintiff,  I  shall 
(1)  ascertain  and  disclose  the  general  intent  and  object  of  the 
legislative  enactment,  and  shall  (2)  apply  the  results  thus  reached 
to  particular  cases  and  rules,  as  far  as  they  have  been  determined 
and  established  by  judicial  decision.  In  this  latter  branch  of  the 
discussion  I  shall  consider  in  order,  (1)  legal  actions  to  recover 
possession  of  land,  or  against  the  owners  of  land  ;  (2)  legal  actions 


332  CIVIL   REMEDIES. 

to  recover  possession  of  chattels,  or  against  the  owners  of  chat- 
tels ;  (3)  legal  actions  upon  contracts  ;  (4)  legal  actions  for 
torts ;  (5)  legal  actions,  generally  allowed  by  statute,  in  refer- 
ence to  the  settlement  of  deceased  persons'  estates ;  (6)  some 
special  legal  actions  not  falling  within  either  of  the  preceding 
heads ;  (7)  actions  against  husband  and  wife,  or  either  of 
them,  as  affected  by  the  marriage  relation ;  and  (8)  equitable 
actions. 

§  286.  What  is  the  general  intent  and  object  of  the  legislation 
in  reference  to  parties  defendant,  taken  as  a  whole  ?  What  prin- 
ciple of  construction  should  be  adopted  in  arriving  at  the  j^rac- 
tical  meaning  and  effect  of  the  various  provisions  of  the  State 
codes  already  quoted  ?  These  questions,  which  are  certainly 
fundamental,  were  thoroughly  discussed  in  the  last  section,  and 
a  reiteration  of  the  reasoning  there  presented  would  be  entirely 
useless.  It  cannot  be  doubted  that  the  legislature  proposed  to 
itself  the  same  object,  and  was  actuated  by  the  same  intent,  in 
the  rules  which  it  has  prescribed  for  defendants  as  in  those  which 
it  has  adopted  for  plaintiffs.  I  dwell  upon  the  fact,  which  is 
apparent  upon  the  most  cursory  reading,  that  the  clauses  con- 
cerning defendants  are  more  full  and  detailed,  and  more  clearly 
set  forth  the  equitable  doctrines,  than  those  concerning  plaintijffs. 
This  fact  is  very  obvious  when  we  refer  to  the  subsequent  sec- 
tions of  the  codes  defining  the  forms  of  judgments,  and  autlior- 
izing  a  severance  among  the  parties  in  rendering  judgment,  and 
also  when  we  refer  to  the  special  provisions  in  many  codes  which 
utterly  abolish  the  ancient  legal  distinctions  between  joint,  joint 
and  several,  and  several  liabilities.  The  conclusions  reached  in 
the  preceding  section,  and  repeated  here,  are  the  following:  The 
legislature  does  not  seem  to  have  intended  to  abandon  the  ancient 
doctrine  in  respect  to  joint  and  several  rights ;  and,  in  fact,  the 
complete  adoption  of  the  equitable  principles  which  regulate  the 
unionof  parties  would  not  require  such  a  change,  for  in  equity, 
as  well  as  in  law,  all  persons  having  a  joint  right  must  in  general 
unite  in  a  suit  to  enforce  that  right.  The  legislature,  on  the 
other  hand,  does  seem  to  have  intended  to  effect  a  change  more 
or  less  thorough  in  the  common-law  rules  which  determine  the 
differences  between  joint,  joint  and  several,  and  several  liabil- 
ities, and  which  regulate  the  selection  and  union  of  defendants 
in  the  case  of  one  or  the  other  of  these  liabilities.     This  intent, 


GENERAL    DOCTRINES    AS   TO    DEFENDANTS.  333 

sufficiently  indicated  in  all  the  codes,  is  placed  beyond  a  doubt  by 
the  express  provisions  of  others.  The  general  conclusions  of  the 
discussion  concerning  plaintiffs,  found  in  the  last  preceding  sec- 
tion, are  equally  true  of  parties  defendant.  Believing  them  to  be 
a  correct  interpretation  of  the  codes,  I  adopt  them  here  without 
any  unnecessary  repetition  of  the  reasoning  by  which  they  were 
established.!  The  rules  which  the  legislatures  have  put  into  a 
statutory  form  are  confessedly  the  general  doctrines  of  equity 
concerning  defendants.  They  apply  in  terms  to  the  civil  action 
appropriate  for  the  pursuit  of  all  remedies ;  no  exceptions  are 
made  or  suggested.  The  design  of  the  legislature  is  therefore 
plain,  that  these  equitable  doctrines  and  rules  should  be  control- 
ling in  all  cases,  and  should  not  be  confined  to  actions  which  are 
equitable  in  their  nature.  It  must  be  confessed  at  once,  how- 
ever, that  this  conclusion  has  not  been  accepted  by  all  the  courts, 
nor  in  its  full  extent,  perhaps,  by  any.  The  general  expressions 
of  the  codes,  although  their  main  design  is  evident  enough,  have 
not  been  regarded  as  sufficiently  explicit,  detailed,  and  peremp- 
tory to  abrogate  and  sweep  away  all  of  the  long-settled  partic- 
ular rules  of  the  former  system.  In  other  words,  the  change,  as 
it  has  been  wrought  out  by  judicial  decision,  has  been  made  par- 
tial and  incomplete,  and  has  been  far  more  radical  and  perfect  in 
certain  of  the  States  than  in  others.  It  is  impossible  to  lay  down 
in  an  explicit  manner  any  more  definite  principle  of  interpretation 
than  that  here  given.  The  actual  position  of  the  courts  must 
be  learned  from  their  decision  of  particular  cases,  and  from 
the  special  rules  concerning  defendants  in  various  classes  of 
actions  which  have  been  established  by  them,  and  which  will 
be  detailed  in  the  following  portions  of  this  section.^ 

1  See  supra,  §§  196-200.  Union  Bank  v.  Bell,  14  Ohio  St.  200,  211. 

-  The  general  theory  of  the  codes,  and  Where  a  demand  exists  in  favor  of  a  firm, 
the  principles  of  the  new  procedure  in  and  one  partner  refuses  to  join  as  a  plain- 
respect  of  parties  defendant,  are  discussed  tiff,  he  may  be  made  a  defendant  in  an 
with  more  or  less  fulness  in  the  following  ordinary  legal  action  brought  by  his  co- 
cases  :  Wilson  V.  Castro,  81  Cal.  420;  partners  to  recover  the  debt.  Hill  v. 
Bowers  r.  Keesecher,  9  Iowa,  422  ;  Nelson  Marsh,  46  Ind.  218.  This  ruling,  in  my 
V.  Hart,  8  Ind.  293 ;  Braxton  v.  State,  25  opinion,  exhibits  the  true  intent  of  the 
Ind.  82  ;  Tinkum  v.  O'Neale,  5  Nev.  93;  codes  in  the  clearest  possible  manner. 
Smetters  v.  Kainey,  14  Ohio  St.  287,  291 ; 


334  CIVIL   REMEDIES. 


Particular  Rules  and  Doctrines. 

§  287.  How  the  questions  of  misjoinder  or  nonjoinder  are  to  he 
raised.  Before  proeeecliiig  to  the  examination  in  detail  of  the 
particuhir  rules  and  doctrines  as  to  defendants,  which  have  been 
established  by  judicial  decision,  I  shall  inquire  how  the  ques- 
tions may  be  raised  in  the  progress  of  an  action  ;  when  the  objec- 
tion of  a  misjoinder  or  a  nonjoinder  -is  waived  ;  and  what  is  the 
effect  of  such  an  error  in  the  proceedings,  if  properly  bronght 
before  the  court  for  adjudication.  I  have  already  quoted  and 
discussed  the  statutory  provisions  which  prescribe  the  modes  of 
raising  the  questions  in  reference  to  plaintiffs  ;  ^  and  the  same 
rules  exist  in  the  case  of  defendants,  for  the  language  of  the 
codes  in  defining  these  methods  applies  alike  to  both  parties.^  It 
was  shown,  in  the  paragraphs  referred  to,  that  "defect  "  of  par- 
ties refers  solely  to  the  wc»»-joinder  of  the  proper  plaintiffs  or 
defendants,  —  to  tlie  fact  of  too  few  parties.  This  construction 
is  universal.^  It  is  settled  by  an  overwhelming  and  unanimous 
array  of  authorities,  (1)  that  if  the  defect  of  parties  defendant  — 
as  thus  defined  —  appears  on  the  face  of  the  complaint  or  peti- 
tion the  defendant  who  desires  to  raise  the  question  must  demur 
upon  that  specific  ground,  an  allegation  of  the  defect  in  the 
answer  as  a  defence  being  nugatory  ;  (2)  when  the  defect  does 
not  thus  appear  on  the  face  of  the  plaintiff's  pleading,  the  defend- 
ant must  raise  the  objection  in  his  answer  as  a  defence  ;  and, 
(3)  if  both  of  these  methods  are  omitted,  or  if  one  of  them  is 
employed  when  the  other  is  projjer,  the  defendant  waives  all 
objection  to  the  defect  or  nonjoinder.'*     In  no  case  can  this  objec- 

1  See  supra,  §§  206,  207.  Burhop   v.    Milwaukee,    18    Wise.    431  ; 

'^  See  tiie  citations  from  the  codes,  and  Cord  v.  Hirsch,  17  Wise.  403  ;  Carney  v. 

the  cases  collected  «»/;;«,  §§  200,  207  ;  Hill  La  Cross,  &c.  K.  R.,  15  Wise.  503  ;  Lowry 

V.  Mar^h,  46  Ind.  218  ;  Mornan  i'.  Carroll,  v.  Harris,  12  Minn.  255  ;  Mitchell  v.  Bank 

35  Iowa,  22,  24,  25  ;  Beckwith  v  Dargels,  of  St.  Paul,  7  Minn.  252;  Carr  v.  Waldron, 

18    Iowa,   303;    School    District,   &c.    v.  44  Mo.  393  ;  Makepeace  i".  Davis,  27  Ind. 

Pratt,  17  Iowa,  16  ;  Byers  v.  Bodabaugh,  352;  Little  v.  Johnson,  26  Ind.  170;  John- 

17  Iowa,  53.  son   v.  Britton,   23   Ind.    105;    Shane   v. 

^  Ibid. ;  Truesdale  v.  Rhodes,  26  Wise.  Lowry,  48  Ind.  205,  206  ;  Strong  v.  Down- 

215,   219,  220.     Read   v.   Sang,  21  Wise,  ing,  34  Ind.  300 ;  Turner  i;.  First  National 

678,  laid  down  a  different  rule,  but  the  Bank,  26  Iowa,  562 ;  Hosley  v.  Black,  28 

Wisconsin  court  is  now  in  harmony  with  N.  Y.  438  ;  Kingsland  v.  Braisted,  2  Lans. 

those  of  all  the  other  States.  17  ;  Sager  v.  Nichols,  1  Daly,  1 ;  Bridge  r. 

■*  Bevier  v.  Dillingham,  18  Wise.  529;  Payson,  5  Sandf  210;  Lewis  y.  Williams 


NONJOINDER   OF    DEFENDANTS.  335 

tiou  be  raised  by  a  demurrer  on  the  ground  that  the  pleading 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
Although  this  rule  is  so  firmly  settled,  yet  if,  on  the  trial,  or  even 
on  appeal,  the  court  sees  that  other  parties  are  indispensable  to  a 
full  determination  of  the  questions  at  issue,  it  may,  on  its  own 
motion,  even  though  the  defect  has  not  been  pointed  out  by 
answer  or  demurrer,  order  the  additional  parties  to  be  brought  in. 
This  power  is  expressly  given  by  all  the  codes,  and  was  a  familiar 
doctrine  of  the  equity  procedure.  The  language  of  the  statutes 
is  certainly  broad  enough  to  permit  the  exercise  of  this  power  in 
legal  as  well  as  in  equitable  actions ;  but,  practically,  the  courts 
confine  its  operation  to  the  latter  class.^  When  the  defendant 
sets  up  in  his  answer  the  defence  of  nonjoinder,  he  must  state 
the  names  and  places  of  residence  of  the  other  persons  whom  he 
alleges  to  be  necessary  defendants.  This  old  rule  of  the  common- 
law  pleading  has  not  been  altered  by  the  new  legislation,^. 

§  288.  The  foregoing  being  the  methods  of  raising  the  ques- 
tions as  to  a  defect  of  parties  defendant,  the  inquiry  arises.  What 
is  the  effect  of  such  defect  when  estal)lished  in  either  of  these 
methods  ?  If,  upon  demurrer,  it  is  held  that  the  plaintiff  has  failed 
to  unite  all  the  necessary  defendants,  he  will  be  permitted  to 
amend,  as  a  matter  of  course,  upon  the  terms  as  to  costs  pre- 
scribed by  the  practice.  When  the  defence  is  set  up  in  the  an- 
swer, the  same  opportunity  is  given  to  the  plaintiff  to  amend, 
and  to  reconstruct  his  action.  If  the  defect  is  not  removed  in 
this  manner,  it  will  certainl}^  defeat  any  legal  action,  although 
not  necessarily,  perhaps,  an  equitable  one.  Undoubtedly,  the 
codes,  adopting  the  doctrine  of  equity  tribunals,  and  extending  it 
to  all  cases,  permit  the  court  in  its  discretion  to  retain  the  cause, 
under  such  circumstances,  until  the  other  necessary  parties  are 

3  Minn.  151  ;  Hier  v.  Staples,  51  N.  Y.  certain  particulars,  altliongii  it  conveyed 
13(3  ;  Fort  Stanwix  Bank  v.  Leggett,  51  the  information  needed,  and  all  the  re- 
N.  Y.  552  ;  Putter  i'.  Ellice,  48  N.  Y.  321  ;  quisites  of  the  defence  were  proved  on 
Pavisich  v.  Bean,  48  Cal.  3G4  ;  KutenLerg  the  trial,  the  defect  was  held  cured, 
r.  Main,  47  Cal.  213;  Gillam  r.  Signian,  Wooster  v.  Chamberlin,  28  Barb.  602. 
29  Cal.  637.  See,  however,  Muir  v.  Gib-  It  has  been  held  in  Indiana  that  a  demur- 
son,  8  Ind.  187  ;  Shaver  v.  Brainard,  29  rer  to  the  complaint,  on  the  ground  of  a 
Barb.  25.  nonjoinder  of  defendants,  must  also  show 

*  As  illustrations,  see  Muir  v.  Gibson,  wlio  ought  to  have  been  added  as  defend- 

8  Ind.  187;  Shaver  v.  Brainard,  29  Barb,  ants,  and  that,  failing  to  do  so,  it  will  be 

25.  overruled.     Willett  v.  Porter,  42  Ind.  250, 

^  Kingsland  v.  Braisted,  2   Lans.    17.  254. 
Where  such  an  answer  was  defective  in 


336  CIVIL    REMEDIES. 

brought  in,  instead  of  dismissing  it  altogether.  It  is  plain  that 
the  language  of  the  statutes  is  general,  and  embraces  all  species 
of  actions,  no  exception  being  expressed  or  intimated ;  and  there 
can  be  no  pretence  that  it  is  not  as  practical)le  and  as  easy  to 
deal  with  legal  actions  in  this  manner  as  with  equitable  suits. 
Practically,  however,  the  authority  thus  given  to  the  courts  is 
restricted  to  equitable  actions,  while  legal  actions  are  disposed 
of  in  the  same  manner  and  by  the  same  rules  as  before  the  re- 
formed system  was  adopted,  —  that  is,  the  nonjoinder  of  a  neces- 
sary defendant,  when  not  cured  by  amendment,  defeats  that 
action,  although  it  does  not  destroy  the  cause  of  action.  It  may 
be  instructive  to  compare  these  results  with  the  provisions  of 
the  new  English  procedure,  which  declare  that  under  no  cir- 
cumstances shall  a  cause  be  defeated  or  dismissed  on  account 
either  of  a  nonjoinder  or  of  a  misjoinder  of  parties.^ 

§  289.  I  pass  now  to  the  misjoinder  or  improper  uniting  of 
defendants.^  Two  cases  present  themselves  which  might  perhaps 
be  regarded  as  falling  under  this  head:  namely,  (1)  Where  all  of 
the  defendants  are  improperly  sued ;  and,  (2)  Where  one  or 
more  are  properly  sued,  and  the  others  are  improperly  joined  with 
them.  The  latter  only  is  a  true  case  of  technical  "misjoinder." 
The  first  is  the  ordinary  case  of  an  action  entirely  misconceived, 
and  the  complaint  or  petition  failing  to  disclose  any  ground  for 
relief,  so  that  all  the  defendants  jointly  or  each  of  them  sepa- 
rately, according  to  the  circumstances,  might  either  demur  for 
want  of  sufficient  facts,  or  move  to  dismiss  the  action  on  the 
trial.  Such  a  case  does  not  fall  within  the  special  rules  of  pro- 
cedure which  relate  to  parties,  but  is  to  be  determined  by  the 
general  doctrines  of  the  law  defining  rights  and  liabilities.  The 
second  of  the  two  cases  just  described  does  come  within  the 
subject-matter  of  parties  defendant,  and  is  to  be  considered  under 
two  aspects,  which  give  rise  to  two  very  different  classes  of  ques- 
tions.    These  two  aspects  are  the  following :   It  being  supposed 


1  The  "  Supreme  Court  of  Judicature  defendants,  they  may  disclaim  and  have 
Act"ofl87o;  Schedule,  Rule  9.  their  costs  against  the  plaintiff.     This  is 

2  The  admirable  rule  is  adopted  in  carrying  out  the  true  spirit  of  the  reform  ; 
North  Carolina  that  a  «i/s-joinder  of  par-  it  fully  sustains  the  theoretical  position 
ties,  either  plaintiffs  or  defendants,  shall  taken  in  the  text,  and  might  well  be  fol- 
never  defeat  (wij  action.  If  plaintiffs  are  lowed  in  all  the  States.  Green  v.  Green, 
improperly    united,   the   defendant   shall  69  N.  0.  294,  298. 

have  judgment  against  them  for  costs  ;  if 


MISJOINDER   OF   DEFENDANTS.  337 

that  one  or  more  defendants,  whom  I  will  call  A.,  are  properly 
sued,  and  that  one  or  more  others,  whom  I  will  call  B.,  are  im- 
properly joined  in  the  action,  the  matters  for  consideration  which 
can  possibly  arise  from  these  facts  are  :  (1)  How  shall  the  proper 
defendants.  A.,  take  advantage  of  the  error,  and  what  effect  (if 
any)  will  it  have  upon  their  rights?  and,  (2)  How  shall  the  im- 
proper defendants,  B.,  raise  the  objection,  and  wliat  effect  (if  any) 
will  the  error  have  upon  their  rights  ?  It  is  j^lain  tiiat  these  tAvo 
sets  of  defendants  occupy  very  dissimilar  positions  in  the  action  ; 
that  their  rights  are  very  different,  and  that  while  the  latter  are 
entitled  to  full  relief,  the  former  may  not  be  in  the  least  injured 
or  affected  by  the  misjoinder.  Much  confusion  in  practice  has 
resulted  from  the  neglect  to  distinguish  between  these  two  cases. 
§  290.  Proceeding  to  the  discussion  of  these  two  cases  sepa- 
rately, I  shall  state  the  rules  established  in  respect  to  the  first  of 
them,  and  shall  illustrate  by  a  striking  example  the  extent  to 
which  the  common-law  doctrines  have  been  changed  by  the  re- 
formed procedure.  When  a  legal  action  is  brought  against  two 
or  more  defendants  upon  an  alleged  joint  liability,  even  though 
based  upon  a  joint  co7itraet,  and  one  or  more  of  them  are,  so  far 
as  they  are  Individ uall}^  concerned,  properly  sued,  but  the  others 
are  improperly  united,  the  defendants  properly  sued  have  no 
cause  of  complaint  whatsoever,  in  any  form,  on  account  of  the 
misjoinder ;  they  cannot  demur  or  answer  for  defect  of  parties, 
because  there  is  no  "defect;"  they  cannot  demur  generally  for 
want  of  sufficient  facts,  because  sufficient  facts  are  averred  as 
against  them ;  they  cannot  demur  or  answer  on  account  of  this 
misjoinder,  because  that  particular  ground  of  objection  is  not 
provided  for  by  the  codes. ^  If  on  the  trial  the  cause  of  action  is 
proved  against  them,  but  none  against  them  and  the  others,  still 
the  plaintiff  will  not  be  absolutely  nonsuited  ;  "he  will  recover  his 
judgment  against  them  according  to  the  right  of  action  estab- 
lished by  the  proof;  while  as  against  the  other  defendants  he  will 
fail,  and  will  be  nonsuited,  or  his  complaint  be  dismissed.  This 
result  of  the  reform  legislation  is  a  very  great  departure  from  the 
former  practice.  At  the  common  law,  if  a  plaintiff  alleged  a 
joint  cause  of  action  against  two  or  more  defendants,  and  failed 

1  An  exception  must,  of  course,   be     defence,  the  ^h/s/o^'/^Jc)- of  parties, — name 
made  of  those  codes  which  expressly  pro-    ly,  Missouri,  Cahfornia. 
vide,  as  a  distinct  cause  of  demurrer  or 

22 


338  CIVIL    REMEDIES. 

to  prove  the  case  as  set  out  in  his  pleading,  he  was  defeated  as 
to  all  ;  he  could  not  recover  against  a  part  and  fail  as  to  the 
others.  The  interpretation  of  the  codes,  as  thus  stated,  is  based 
partly  upon  the  sections  already  quoted  in  relation  to  defendants, 
and  partly  upon  other  sections  —  to  be  fully  discussed  hereafter 

—  in  relation  to  the  form,  and  manner  of  recovery  and  entry  of 
judgments.  By  combining  these  various  provisions,  and  by  a 
construction  of  them  in  accordance  with  their  plain  spirit  and 
meaning,  the  courts  have  deduced  the  rules  here  given.  To 
those  defendants  who  are  sued  in  a  legal  action,  even  though 
upon  an  alleged  joint  liability,  and  who  are  actually  liable  upon 
the  contract  or  other  cause  of  action  averred,  the  fact  that  other 
persons  are  also  added  as  codefendants,  however  improperly,  is  no 
defence,  is  no  answer  to  the  action  in  any  manner  or  form.  This 
doctrine  is  fully  established  by  the  cases  collected  in  the  foot- 
note, and  in  many  others  which  it  is  unnecessary  to  cite.^  The 
rule  being  thus  established  in  the  extreme  case  of  legal  actions 
alleging  a  joint  liability  upon  contract,  it  is  of  course  equally  true 
in  all  other  legal  actions  based  upon  a  liability  which  at  the  com- 
mon law  was  several,  and  in  which  the  misjoinder  of  some  de- 
fendants would  have  been  no  defence  as  to  those  properl}'  sued, 

—  as,  for  example,  in  actions  for  torts.  A  fortiori,  does  the  same 
doctrine  apply  in  all  equitable  actions.  Under  the  former  system, 
the  improper  uniting  of  codefendants  was  never  a  sufficient 
ground  for  preventing  a  decree  against  those  who  were  properly 
made  parties  if  the  suit  was  in  equity. ^ 

§  291.  The  situation  of  those  parties  improperly  joined  as  co- 
defendants  is,  of  course,  very  different  from  that  just  described. 

1  Mcintosh  V.  Ensign,  28  N.  Y.  169,  Jackson,  IG  Barb.  33  ;  N.  Y.  &  N.  H.  R.  R. 

172.     Wriglit  J.,  after  stating  the  com-  v.   Schuyler,    17  N.   Y.  592;  Coakley   v. 

luon-law  rule  in  actions  upon  a  joint  con-  Chamberlain,  8  Abb.  Pr.  n.  s.  37  ;  Fort 

tract,  said  :  "But  tliat  is  not  the  present  Stanwix  Bank  v.  Leggett,  51  N.  Y.  552; 

rule.     A  plaintiff  is  not  now  to  be  non-  Truesdell  v.  Rhodes,  26  Wise.  215,  219, 

suited  because  he  has  brought  too  many  220 ;  McGonigal  v.  Colter,  32  Wise.  614 ; 

parties  into  court.     If  he  could  recover  Willard  f.  Rea8,26  Wise.  540, 544  ;  Alnutt 

against  any  of  the  defendants  upon  the  v.  Leper,  48  Mo.  319  ;  Brown  v.  Woods, 

facts  proved,  had  lie  sued  them  alone,  the  48  Mo   330  ;  Rutenberg  v.  Main,  47  Cal. 

recovery  against  them  is  proper,  although  213,  221  ;  Aucker  v.  Adams,  23  Ohio  St. 

he  may  have  joined  others- with  them  in  the  543,    548-550;   Lampkin  v.   Chisom,    10 

action  against  whom  no  liability  is  shown."  Ohio  St.  4"0.     See  also  cases  cited,  i»fra, 

See   also,   per   Emott  J.,  pp.    174,   175;  under§  291  of  the  text  in  reterence  to  the 

Brumskill  I'.  James,  UN.  Y.  294;  Mar-  Temedy  hy  those  icho  are  im]>roj>erli/  joined. 
quat  V.  Marquat,  12  N.  Y.  336  ;  Harring-         2  gee  N.  Y.  &  N.  H.  R.  R.  v.  Schuyler, 

ton  V.  Higliam,  15  Barb.  524 ;  Parker  v.  17  N.  Y.  592. 


MISJOINDER    OF   DEPENDANTS.  339 

The  very  statement  of  the  case  assumes  that  the  action  is  wrongly 
brought  as  against  them ;  that,  either  as  disclosed  b}^  the  allega- 
tions of  the  plaintiff's  pleading,  or  as  discovered  by  the  evidence 
on  the  trial,  no  cause  of  action  exists  against  them,  notwithstand- 
ing the  one  which  exists  against  their  codefendants.  If,  therefore, 
in  such  a  case,  it  appears  on  the  face  of  the  complaint  or  petition 
that  one  or  more  persons  have  been  improperly  made  defendants, 
such  persons  may  present  the  objection  by  a  demurrer,  not  on 
the  ground  of  a  "defect"  of  parties,  but  on  the  ground  that  the 
plaintiff's  pleading  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action  against  them.  This  demurrer  must  be  interposed 
only  by  those  defendants  who  are  wrongly  sued,  and  not  hy  all 
the  defendants  jointly^  since,  if  two  or  more  demur  jointly,  and  as 
to  a  jjortion  of  them  there  is  no  cause  for  the  demurrer,  it  must 
fail  as  to  all.  The  safer  practice  is,  therefore,  for  each  defendant 
who  claims  that  he  is  improperly  joined,  to  demur  separately  and 
individually  from  the  others.  This  particular  ground  of  objec- 
tion is  not  waived  by  a  neglect  to  demur,  as  it  is  expressly  pro- 
vided in  all  the  codes  that  the  defendant  may  at  the  trial  inter- 
pose the  same  objection  to  the  plaintiff's  recovery,  even  though 
he  has  failed  to  allege  it  on  the  record.  If  the  absence  of  a  cause 
of  action  does  not  appear  on  the  face  of  the  plaintiff's  pleading, 
the  defence  may  be  set  up  in  the  sepa7'ate  answer  or  answers  of 
the  parties  who  rely  upon  it.  Finally,  whatever  be  the  com- 
pleteness or  defect  of  the  allegations  made  by  the  plaintiff  and  of 
the  issues  raised  in  the  answers  of  the  defendants,  if  on  the  trial 
the  evidence  fails  to  establish  a  cause  of  action  against  some  por- 
tion of  the  defendants,  and  it  thus  appears  that  they  had  been 
wrongfully  proceeded  against  in  the  action,  the  plaintiff  will  be 
nonsuited,  or  his  complaint  or  petition  dismissed  as  to  them,  and 
his  recovery  will  be  limited  to  the  others  against  whom  a  cause 
of  action  is  made  out.  The  foregoing  rules  are  sustained  by  the 
cases  with   almost   absolute   unanimity.^     These  are   the   n^ore 

1  Young  V.  N.  Y.,  &c.  Steamship  Co.,  Willard  v.  Reas,  26  Wise.  540,  544;  Ru- 

10  Abb.  Pr.  229 ;  Mitchell  v.  Bank  of  St.  tenberg  v.  Main,  47  Cal.  213,  221.  A  joint 

Paul,  7  Minn.  252,  256 ;  Nichols  v.  Ran-  action  against  several    defendants   on   a 

dail,   5   Minn.  304 ;  Seager  v.  Burns,   4  joint  contract.     All  the  defendants  denied 

Minn.   141  ;  Lewis  v.  Williams,  3  Minn,  making  the  contract,  but  no  defence  of 

151  ;  Makepeace  v.  Davis,  27  Ind.  352,  misjoinder  was  pleaded.     On  the  trial,  it 

355;  McGonigal  i;.  Colter,  32  Wise.  614;  was  proved  that  the  contract  was  made 

Webster  v.  Tibbits,  19  Wise.  438;  Trues-  by  some  of  the  defendants,  but  not  by  all. 

dell  V.  Rhodes,  26  Wise.  215,  219,  220 ;  It  was  held  that  the  plaiatiflF  should  re- 


340  CIVIL    REMEDIES. 

regular  and  formal  modes  of  raising  the  questions  as  to  mis- 
joinder by  those  defendants  who  are  thus  wrongfully  made  par- 
ties to  a  suit ;  but  there  undoubtedly  may  be  cases  in  which  the 
court  will  proceed  in  a  more  summary  manner,  and  will  strike 
off  the  name  of  a  party  on  his  mere  motion.  Such  cases  must  of 
necessity  be  somewhat  exceptional,  for,  as  a  general  rule,  the 
rights  and  liabilities  of  the  parties  to  the  record  will  not  be  deter- 
mined on  motion  or  by  any  other  means  except  a  formal  trial  of 
the  issues. 

§  292.  If  we  sum  up  the  results  of  the  preceding  discussion, 
the  following  conclusions  may  be  regarded  as  established  beyond 
an}'  doubt.  In  ascertaining  the  effects  of  a  misjoinder  of  parties, 
the  courts,  with  great  equanimity,  have  accepted  and  carried 
out  in  practice  the  spirit  and  true  intent  of  the  reform  legislation  ; 
namely,  that  the  familiar  doctrines  of  equity  should  be  made 
controlling  in  all  kinds  of  actions  legal  and  equitable.  They 
have  in  this  instance  entirely  abandoned  the  technical  common- 
law  rules,  and  have  assimilated  all  actions  in  this  respect  to  a  suit 
in  equity.  Even  in  the  case  where  the  common-law  doctrine  of 
joint  liability  was  the  most  rigid,  they  have  with  perfect  ease 
abandoned  it,  have  treated  it  as  though  abrogated  by  the  general 
expressions  of  the  reform  legislation,  and  have  thus  demon- 
strated that  the  judicial  reasoning  by  which  that  ancient  dogma 
had  been  supported  was  in  fact  nothing  but  a  formula  of  words 

cover  against  those  defendants  who,  as  it  ure  of  evidence  as  to  any  one,  that  one 

was  proved,  had  entered  into  the  agree-  should  have  a  decision  or  a  verdict  in  his 

nient,  wliile,  as  to  the  others,  the  action  own  favor."     Tlie  section  4-1  referred  to 

sliould  be  dismissed.     After  stating  tliat,  (present  §  433)  provides  that,  where  tlie 

under  §  44,  if  the  misjoinder  of  defend-  defects  do  not  appear  on  the  face  of  the 

ants  does  not  appear  on  the  face  of  the  complaint,  the  objection  must  be  taken 

complaint,  the  objection  must  be  taken  by  by    answer.      See,   however,  per  contra, 

answer,  or  else  it  is  waived,  citing  Gillara  Wood  v.  Olney,  7  Nev.  109,  which  holds 

V.  Sigman,  29  Cal.  637,  the  court  added  :  that  when  a  joint  demurrer  by  defendants 

"This  section  applies  to  actions  ex  con-  is  good  as  to  some  and  bad  as  to  the 

tractu  and  ex  delicto,  and,  to  the  extent  others,  it  will  not  be  overruled  as  to  all ; 

necessary  to  give  it  effect,  it  controls  the  it  will  be  sustained  as  to  those  who  had  a 

principle  that  the  allegations  and  proofs  good  cause  of  demurrer,  and  overruled 

must  correspond.     This  only  means  that  only  as  to  the  others.     In  Missouri,  where 

if  the  evidence  does  not  connect  all  the  a  misjoinder  is  made  a  cause  of  demurrer, 

defendants,  —  and  tlie  misjoinder  has  not  it  is  held  the  objection  must  be  set  up  by 

been    specially   pleaded,  —  the    plaintiff  those  who  ore   thus  imjiroptrli]  joined,  and 

shall  not  fail  against  all.     Each  of  the  not  by  the  others.     If  the  others  unite  in 

defendants  is  still  entitled  to  use  the  joint  the  demurrer,  it  will  be  overruled  as  to 

denial  that  the  contract  was  made  for  his  them.      Brown  v.   Woods,  48   Mo.  330; 

own  protection  ;  and  in  case  there  is  fail-  Alnutt  v.  Leper,  48  Mo.  319. 


MISJOINDER    OP   DEFENDANTS.  341 

without  any  veal  force  and  meaning.  They  have  shown  that  in 
a  legal  action  upon  contract,  no  matter  what  may  be  the  allega- 
tions as  to  the  joint  nature  of  the  liability,  it  is  possible  to  sever 
the  judgment  and  to  permit  a  recovery  against  some  defendants 
and  for  the  others,  and  thus  to  bring  all  cases  legal  and  equitable 
within  the  operation  of  the  familiar  principles  of  equity.  I  dwell 
upon  this  special  instance  of  liberal  construction  because  it  well 
illustrates  the  position  which  1  have  theoretically  maintained  as  to 
the  general  mode  of  interpreting  the  codes.  The  courts  of  the 
different  States  have  found  no  difficulty  in  adopting  and  applying 
the  complete  doctrine  of  equity  in  this  case  ;  there  is  no  greater 
difficulty  in  adopting  and  applying  the  same  to  all  the  provisions 
of  the  codes  relative  to  parties,  and  to  the  amalgamation  of  equi- 
table and  legal  principles  in  the  one  civil  action  created  by  the 
new  procedure.  If  the  rules  which  control  equitable  tribunals 
can  be  and  ought  to  be  introduced  into  the  civil  action  in  respect 
to  the  single  feature  of  a  misjoinder  of  defendants,  for  the  same 
reason  thej^  can  and  ought  to  be  introduced  in  respect  to  all  the 
parties  and  in  respect  to  every  other  external  feature  of  the  judi- 
cial proceeding.  If  the  courts  had  been  consistent  in  this  matter, 
and  had  not  halted  in  their  work  of  liberal  construction,  a  com- 
plete, harmonious,  and  symmetrical  system  would  long  since  have 
been  constructed,  and  the  confusion  and  conflict  in  principle 
which  now  exist  would  have  been  avoided.  Until  this  course 
is  freely  and  s^^stematically  adopted,  until  the  courts  shall  follow 
out  to  its  legitimate  results  in  all  parts  and  elements  of  the 
action  the  equitable  notion  which  is  made  everywhere  so  promi- 
nent in  the  statute,  we  can  never  expect  to  obtain  all  the  sim- 
plicity, and  clearness,  and  subordination  of  external  form  to 
substantial  facts  promised  by  the  new  system  of  procedure. 

§  293.  Even  in  determining  the  effects  of  a  nonjoinder  of 
proper  defendants,  the  courts  have  failed  to  interpret  the  provi- 
sions of  the  codes  with  the  same  freedom  which  they  used  in  that 
of  misjoinder ;  they  have  hesitated  and  stopped,  when  it  would 
have  been  easy  to  have  gx)ne  forward,  and  to  have  given  the 
clauses  their  full  force  and  effect.  Undoubtedly  the  two  cases 
stand  upon  a  somewhat  different  footing.  When  a  person  is 
himself  properly  sued,  it  does  not  substantially  affect  his  rights 
or  liabilities  that  another  person  is  also  improperly  sued  Avith 
him  ;  that  fact  does  not  essentially  make  his  own  liabiUty  greater 


342  CIVIL   REMEDIES. 

or  less.  But  when  a  person  is  sued,  lie  has,  in  many  instances,  — 
certainly  in  all  those  legal  actions  where  the  liahility  is  joint,  and 
in  some  equitable  suits  where  the  rights  and  liabilities  are  com- 
plex,—  a  right  that  all  the  others  who  are  also  liable  with  him, 
or  against  whom  the  cause  of  action  exists,  or  who  are  necessary 
parties  to  a  complete  determination  of  the  controversy,  should  be 
united  with  him  as  codefendants,  and  a  neglect  to  join  them  is  an 
error  against  Avhich  he  should  be  permitted  to  object,  and  from 
which  he  should  be  suffered  to  obtain  a  relief.  The  former  equi- 
table procedure,  as  well  as  the  common-law  practice,  recognized 
this  right  of  the  defendant.  But  it  is  a  very  different  thing  to 
say  that  such  an  error,  when  established,  should  in  any  class  of 
cases  absolutely  defeat  the  action.  The  error  is  not  essentially 
fatal.  This  is  shown  by  the  practice  itself  of  the  courts,  which 
treats  the  objection  as  dilatory,  and  requires  it  to  be  presented  in 
a  certain  technical  manner,  or  else  regards  it  as  waived.  There 
is  then  no  reason  in  the  nature  of  the  proceeding  why  the  equity 
doctrine  should  not  have  been  applied  under  these  circumstances 
to  all  legal  actions,  so  that,  when  an  improper  nonjoinder  is 
finally  estaljlished  by  the  decision  of  the  court,  the  action  should 
never  be  defeated  thereby,  but  should  be  retained  by  the  court  in 
order  that  the  plaintiff  might  add  the  necessary  defendants,  and 
then  the  cause  proceed  to  judgment  on  the  merits.  It  is  cer- 
tainly as  practicable  and  as  easy  to  pursue  this  course  with  all 
legal  actions,  as  it  is  with  those  that  are  equitable  ;  and  the  codes 
expressly  permit,  if  not  require  it,  in  language  which  in  terms 
embraces  every  species  of  suit. 

I  shall  now  proceed  to  consider  the  particular  cases  which  have 
arisen,  and  the  various  specific  rules  as  to  parties  defendant  which 
have  been  established  l)y  judicial  decision.  This  examination 
will  show  how  the  general  principles  of  interpretation  have  been 
applied  by  the  courts,  and  will  exhibit  the  system  as  a  whole 
which  has  been  constructed  in  respect  to  the  selection  and  joinder 
of  defendants.  The  discussion  will  be  separated  into  three  gen- 
eral divisions :  namely,  legal  actions  generally  ;  actions  against 
husband  and  wife,  or  either  of  them,  as  affected  by  the  marriage 
relations  ;  equitable  actions  generally. 


ACTIONS    AGAINST   OCCUPANTS    OP   LAND.  SiS 

FIRST:    LEGAL   ACTIONS. 

§  294.  I.  Actions  against  Owners  or  Occupants  of  Lands.  This 
division  does  not  include  actions  for  trespass  or  other  torts  to  the 
land  or  its  possession,  which  will  be  considered  under  a  subse- 
quent subdivision  relating  to  torts.  The  actions  here  intended 
must  be  brought  against  joint  owners,  owners  in  common,  or 
occupants.  The  action  to  recover  possession  of  land,  and  to  try 
the  title  thereto,  is  generally  called  by  lawyers  and  judges  the 
action  of  ejectment.  Yet  wherever  the  new  procedure  is  adopted, 
it  far  more  nearly  resembles  in  all  of  its  essential  features  the 
ancient  real  actions  which  were  displaced  in  use  by  "  ejectment," 
—  in  its  essential  features,  I  say,  for  of  course  it  has  none  of  the 
technical  peculiarities  which  marked  those  old  common-law  forms 
of  proceeding.  One  fact  is  certainly  true,  namely,  that  it  does 
not  bear  the  slightest  resemblance  to  the  action  of  "  ejectment," 
as  that  was  contrived  by  the  old  judges  and  lawyers,  and  only 
confusion  and  misconception  result  from  applying  to  it  that  name. 
Undoubtedly  the  courts  have  continued  to  connect  with  it  some 
of  the  special  rules  and  doctrines  which  belonged  to  the  action  of 
ejectment ;  but  many  of  them,  I  am  sure,  could  never  have  been 
retained  if  the  courts  had  fully  appreciated  the  completeness  of 
the  change  wrought  by  the  reformed  system  of  procedure  in 
abolishing  all  the  forms  of  legal  actions,  and  had  reflected  that  the 
technical  rules  resulting  alone  from  the  absurd  fictions  which 
characterized  ejectment  have  no  legitimate  connection  with  the 
simple  action  to  recover  possession  of  and  try  the  title  to  land 
whicih  has  been  introduced  by  the  codes  in  the  place  of  the  former 
modes.  As  in  the  "  real  actions,"  the  real  party  in  interest,  and 
that  is  the  owner  of  the  estate  entitling  him  to  possession,  — 
whatever  be  its  nature,  —  must  be  the  plaintiff,  and  if  the  object  be 
to  establish  a  title,  the  holder  or  claimant  of  the  adverse  title  must 
be  made  the  defendant,  while  in  respect  of  the  claim  to  possession 
the  occupant  must  be  made  a  defendant.  These  are  the  simple 
essentials  of  the  action,  and  they  clearly  have  nothing  in  them 
akin  to  "  ejectment."  The  codes  of  a  few  States  contain  express 
provisions  in  relation  to  parties  defendant,  and  especiallv  in  relation 
to  the  union  of    the  landlord  and  tenant  as  codefendants,^  but 

1  Code  of  New  York,  §  118;  California,  §§  379,  380;  South  Carolina,  §  141; 
North  Carolina,  §  61. 


344  CIVIL   REMEDIES. 

these  are  rather  inserted  from  an  excess  of  caution,  and  do  not  add 
anything  to  the  force  of  the  more  general  clauses. 

§  29").  In  an  action  to  recover  possession  of  an  entire  tract  or 
parcel  of  land,  when  the  claim  of  the  plaintiff  to  the  whole  rests 
upon  and  is  derived  through  a  single  title,  he  may,  and  unless 
their  occupation  is  distinct,  should  join  all  the  actual  occupants 
or  tenants  of  the  tract,  even  though  they  may  be  in  possession  of 
separate  and  distinct  portions  thereof,  and  may  hold,  possess,  and 
claim  under  separate  and  distinct  titles.  In  addition  to  these  he 
may  join  the  landlord  or  person  holding  the  fee,  or  any  person 
claiming  the  ownership  and  right  of  possession,  and  must  join 
such  person  if  he  desires  to  establish  in  that  action  his  own  ulti- 
mate ownership  against  that  claimant.^  If  the  entire  tract  is  in 
the  possession  of  two  or  more  persons  who  possess  the  same,  not 
in  separate  portions,  but  jointly  or  in  common  in  undivided  shares, 
they  should  all  be  made  defendants.  If  the  plaintiff,  however, 
claims  separate  portions  of  an  entire  tract  under  distinct  titles, 
and  each  of  these  portions  is  possessed  or  occupied  by  a  different 
person  holding  under  a  separate  right  or  title  from  the  others,  he 
cannot  join  all  these  occupants  in  a  single  action  ;  a  suit  must  be 
brought  to  recover  each  portion  against  the  occupant  thereof ; 
the  mere  fact  of  propinquity  would  not  produce  any  community 
of  interests.  The  foregoing  propositions  are  sustained  and  illns- 
trated  in  the  following  instances.  In  an  action  brought  by  a 
widow  to  recover  dower  (which  had  not  been  assigned)  in  a  city 
lot  of  land  and  block  of  stores,  the  occupant,  holding  under  a 
lease  for  one  year,  of  a  single  floor  of  one  store  standing  on  a 
small  portion  of  the  entire  tract,  was  held  to  be  properly  joined  as 
a  codefendant.^  A  similar  action  being  brought  to  recover  dower 
in  a  tract  which  the  husband  had  conveyed  during  his  marriage 
to  a  single  grantee  by  one  deed  in  which  his  wife  did  not  join, 
and  which  land  had  by  subsequent  deeds  been  conveyed,  one-half 
to  one  separate  owner,  and  one-half  to  another,  it  was  held  that 

1  State  V.  Or\vi<j,  34  Iowa,  112,  115.  dower,  must  be  against  the  owner  of  the 

2  Ellicott  V.  Mosier,  7  N.  Y.  201.  This  freehold,  as  in  the  common-law  action  of 
was  so  held  under  the  2  R.  S.  of  New  dower.  In  Missouri,  when  an  action  is 
York,  p  303,  §§  2  and  4,  and  p.  304,  §§  10  brought  to  recover  lands  claimed  to  be 
and  13,  which  provide  that  ejectment  must  owned  in  fee  by  a  wife,  her  husband  is  the 
be  brought  against  the  person  actuall}'  only  proper  party  to  be  made  defendant, 
in  occupation  ;  citing  Sherwood  v.  Van-  since  he  is  entitled  to  the  possession, 
denburgh,  2  Hill,   303.      The  defendant  Bledsoe  v.  Simms,  53  Mo.  305. 

had  contended  that,  the  action  being  for 


ACTIONS    AGAINST    OCCUPANTS    OF   LAND.  345 

the  widow,  being  entitled  to  dower  in  the  whole  tract,  might  join 
both  these  owners  of  the  fee,  who  were  also  the  occupants,  as  de- 
fendants in  the  same  action.^  The  rule  is  not  confined  to  pro- 
ceedings for  the  recovery  of  dower.  Where  it  was  alleged  that 
one  defendant  claimed  to  be  owner  in  fee  of  the  whole  premises, 
and  that  the  three  other  defendants  were  his  tenants,  and  that 
they  all  "  unjustly  Avithheld  from  the  plaintiff  the  possession  of 
the  said  premises,"  and  it  appeared  on  the  trial  that  each  of  these 
four  defendants  actually  occupied  a  separate  portion,  it  was  held 
that  all  these  persons  were  properly  united  as  eodefendants  in  the 
action.^  When  the  land  is  in  the  actual  possession  of  a  tenant, 
the  landlord  may  be  joined  with  him  as  a  codefendant,  indepen- 
dently of  any  express  provision  of  the  code  authorizing  such  a 
course,  if  the  landlord  has  in  any  manner  interfered  to  resist  the 
plaintiff's  claim,  or  has  aided  and  abetted  the  tenant  in  his  resist- 
ance, or  has  asserted  the  right  of  ownership  to  be  in  himself  as 
against  the  plaintiff.'^ 

§  296.  Persons,  however,  whose  rights  cannot  be  at  all  affected 
by  a  recovery  against  the  party  in  actual  possession,  Avhose  in- 
terest is  entirely  distinct  from  his,  and  under  or  from  whom  he 
does  not  derive  any  title,  are  neither  necessary  nor  proper  co- 
defendants  with  him  in  an  action  brought  to  recover  the  posses- 
sion as  against  his  special  title ;  as,  for  example,  the  remainder- 


1  Galbreath  v.  Gray,  20  Intl.  290.  It  session  his  own  ;  and,  if  wrongful,  he  was 
was  held  that  the  respective  liabilities  of  thus,  with  his  tenant,  responsible  therc- 
the  two  defendants  could  be  arranged  and  for,"  —  citing  Fosgate  v.  Herkimer  Man. 
determined  in  the  judgment.  Co.,  supra  ;  Pearee  v.  Ferris's  Executors, 

2  Fosgate  v.  Herkimer  Man.  Co.,  12  10  N.  Y.  280;  Fosgate  v.  Herkimer,  &o. 
N.  Y.  580.  See  Fisher  v.  Hepburn,  48  Co.,  12  Barb.  352.  This  decision  is  not 
N.  Y.  41,  55,  per  Earl  J.  based  upon  the  last  clause  of  §  118  of  the 

3  Abeel  v.  Van  Gelder,  36  N.  Y.  513.  New  York  code.  See  also  Finnegan  v. 
One  S.  was  the  tenant  in  possession,  and  Carraher,  47  N.  Y.  493,  which  was  very 
Van  G.  was  the  landlord.  The  court,  similar  to  Abeel  v.  Van  Gelder,  supra,  in 
after  reciting  the  facts  that  Van  G.  all  the  facts.  The  landlord  alone  was 
claimed  to  be  the  owner,  that  the  entry  sued.  Court  held  the  tenant  was  also  a 
was  made,  and  the  possession  was  retained  proper  and  perhaps  a  necessary  party, 
by  his  command,  that  he  asserted  title  but  objection  to  his  nonjoinder  had  been 
in  himself,  and  declared  that  possession  waived  by  not  demurring  or  answering, 
should  not  be  surrendered,  proceeds,  at  In  Iowa,  it  is  held  that  when  the  defend- 
p.  514 :  "  This  was  certainly  enough  to  ant  is  only  a  tenant,  the  landlord  7nai/  be 
constitute  him  a  tort  feasor  with  his  ten-  substituted;  but  this  is  not  necessary, 
ant,  whose  action  he  assumed  to  control.  If  substituted  or  notified,  he  is  bound  by 
He  knowingly  and  purposely  took  upon  the  judgment;  otherwise  he  is  not.  State 
himself  the  burden  of  supporting  his  ten-  v.  Orvvig,  34  Iowa,  112,  115. 

ant's  possession,  and  thus  made  the  pos- 


346  CIVIL   REMEDIES. 

man  in  fee  after  a  life  estate,  when  the  action  is  merely  for  the 
purpose  of  recovering  possession  during  the  continuance  of  such 
life  interest.  Thus,  in  an  action  against  a  husband,  tenant  by 
the  curtesy  in  actual  possession,  brought  not  to  establish  an 
absolute  title  in  fee,  but  to  recover  the  possession  during  the 
husband's  life,  the  heirs  of  the  deceased  wife  —  who  are  the 
reversioners  in  fee  —  are  neither  necessary  nor  proper  parties 
defendant.^  On  the  same  principle,  an  action  by  the  grantee  in  a 
sheriff's  deed  of  lands  given  on  an  execution  sale,  the  judgment 
debtor  having  died,  should  be  against  the  hitter's  heirs  alone,  and 
not  against  them  and  his  widow  ;  her  dower  right  could  not  be 
affected  by  the  recovery,  and  being  as  yet  unassigned,  it  did  not 
entitle  her  to  possession  as  against  the  plaintiff.^  Lands  having 
been  given  to  a  tenant  for  life,  with  remainder  in  fee  to  another, 
the  former  leased  the  premises  for  a  term  of  years,  with  a  cove- 
nant of  quiet  enjoyment.  The  life  tenant  died  before  the  expira- 
tion of  the  term,  and  the  remainder-man  thereupon  entered  and 
took  possession.  The  lessee  brought  an  action  upon  the  broken 
covenant  against  both  the  executors  of  the  life  tenant  and  the 
remainder-man.  The  action  in  this  form  was  plainly  without 
any  foundation ;  the  remainder-man  was  improperly  joined,  as 
he  was  in  no  manner  liable  on  the  covenant.^ 

§  297.  II.  Actions  against  Owners  or  Possessors  of  Chattels. 
The  actions  which  fall  under  this  subdivision,  and  which  have 
any  distinctive  features,  are  very  few  in  number.  Those  brought 
to  recover  damages  for  a  tortious  act,  trespass,  or  negligence, 
committed  by  means  of  a  chattel,  and  those  brought  to  recover 
damages  for  the  conversion  of  a  chattel,  properly  belong  to  the 
subdivision  which  treats  of  actions  for  torts  in  general.  The 
common-law  rules  as  to  parties  defendant  in  an  action  to  recover 
possession  of  chattels  have  not  been  in  any  manner  affected  by 

1  Allen  V.  Ranson,  44  Mo.  263.  3  Coakley  v.  Chamberlain,  8  Abb.  Pr. 

2  Caveniler  v.  Smith,  8  Iowa,  360.  If  n.  s.  37.  The  complaint  was  dismissed 
the  dower  had  been  assigned  so  that  the  as  to  the  remainder-man,  and  judgment 
widow  was  in  actual  possession  of  part  of  was  rendered  against  the  executors.  The 
the  land,  her  possession,  as  long  as  it  con-  action  was  in  every  respect  remarkable, 
tinued,  would,  of  course,  have  been  under  Where  a  lessee  assigns  his  term,  tiie  lessor 
a  title  paramount  to  that  of  the  plaintiff;  may  join  the  lessee  and  the  assignee  in  a 
and,  although  not  3'et  assigned,  she  could  suit  for  the  rent.  Tabue  v.  McAdams, 
establish  her  dower  against  the  plaintiff  8  Bush,  74. 

after  he  had  obtained  possession  of  the 
entire  tract  in  his  action. 


ACTIONS    AGAINST   POSSESSORS    OF   CHATTELS.  347 

the  new  procedure.  Such  action  must  be  brought  against  the 
party  or  parties  in  actual  possession  of  the  chattel  demanded  by 
the  plaintiff.  If  this  actual  possession  is  in  one,  he  must  be  the 
sole  defendant;  if  in  two  or  more  jointly,  —  as,  for  example,  in  a 
partnership,  —  they  must  all  be  made  defendants. ^  There  is  a 
particular  case  in  which  the  action  may  be  maintained  against 
one  in  constructive  f)OSsession,  as  well  as  against  the  party  in 
actual  possession.^  If  the  original  taking  of  the  goods  was  wrong- 
ful, and  the  wrong-doer  has  subsequently  parted  with  the  posses- 
sion by  assignment,  the  action  will  still  lie  against  him,  or  it 
may  be  prosecuted  against  both  himself  and  the  assignee  whose 
possession  is  actual.^  Possession  by  the  party,  however,  and  not 
the  claim  of  ultimate  ownership,  is  in  general  the  ground  for 
making  him  a  defendant.  If  the  possessor  is  sued,  and  a  third 
person  also  sets  up  a  claim  of  title,  the  conflicting  demands  may 
be  determined  by  means  of  an  interpleader  between  the  plaintiff 
and  this  claimant,  ordered  by  the  court  at  the  instance  of  the 
defendant,  if  he  in  fact  admits  that  he  himself  has  no  right  in 
and  to  the  goods.^ 

§  298.  The  liability  of  ship-owners  for  supplies  furnished  or 
repairs  made,  or  upon  other  contracts,  express  or  implied,  in 
respect  to  the  vessel  itself,  gives  rise  to  rules  which  properly  fall 
under  this  subdivision.  I  do  not  now  stop  to  inquire  when,  how, 
or  by  whom  the  owners  may  be  bound,  nor  what  are  the  powers 
of  the  master  or  other  agent  in  managing  the  vessel.  It  is  as- 
sumed that  the  power  exists  and  has  been  properly  exercised, 
and  that  a  liability  has  arisen  for  the  supplies,  repairs,  or  other 
aid  to  the  ship ;  and  the  single  question  is.  What  is  the  extent  of 
the  liability,  upon  whom  does  it  rest,  and  against  whom  should 
it  be  enforced  ?  When  a  liability  has  been  created  by  the  master 
or  other  agent  for  supplies  furnished  to  the  vessel,  the  j^art-owners 

1  Code  of  New  York,  §  207  ;  Ohio,  3  Nicliols  v.  Michaels,  23  N.  Y.  264, 
§  175  ;  Indiana,  §  129 ;  Wisconsin,  ch.  128,     268,  270,  271,  per  James  and  Selden  JJ. 

§  2;  Minnesota,  2  Stats,  at  Large,  p.  876,  *  gee  code  of  New  York,  §  122  ;  Ohio, 

§  56;  Missouri,  art.  6,  §  1 ;  Iowa,  §  3225;  §  42;  Indiana,  §  23;  Wisconsin,  ch.  123, 

California,    §   510;  Oregon,   §    131;    Ne-  §  22  ;  Minnesota,  §  116;    Iowa,  §  2572; 

braska,  §    182 ;  Kansas,  §   177 ;    Florida,  Kentucky,  §  42 ;  California,  §  386  ;  Kan- 

§  156  ;  1  Ch.  PI.,  pp.  122, 123  (Springfield  sas,  §    43  ;  Nebraska,  §  48  ;  Florida,  §  77  ; 

ed.,  1840).  South  Carolina,  §  145  ;   North    Carolina, 

2  Nichols  V.  Michaels,  23  N.  Y.  264,  §  65 ;  Nevada,  §  17  ;  Oregon,  §  39  ;  Da- 
270,  271.  See  Haughton  v.  Newberry,  69  cotah,  §  75 ;  Washington,  §  12 ;  Wyoming, 
N.  C.  456.  §  47  ;  Montana,  §  19, 


348  CIVIL   EEMEDIES. 

are  responsilile  in  ftolido^  and  should  all  be  joined  as  defendants ; 
the  nonjoinder  of  some  is  a  defence  by  those  sued  ;  ^  and  the  same 
is  true  in  the  case  of  repairs  and  of  all  other  expenses  properly- 
incurred  in  sailing  her.^  An  action  to  recover  compensation  in 
the  nature  of  salvage  for  services  rendered  in  saving  and  securing 
a  disabled  steamboat  under  circumstances  entitling  the  plaintiff 
to  such  compensation,  was  held  to  be  properly  bi-ought  against 
all  the  persons  and  corporations  who  owned  interests  in  the  boat, 
even  though  their  interests  were  distinct  and  unequal,  and  even 
though  some  of  them  were  separate  insurers  of  her  by  different 
policies,  to  whom  an  abandonment  had  been  made  on  account  of 
a  total  loss.  Although  their  interests  and  their  liabilities  were 
unequal,  they  might  all  be  sued  in  a  single  action,  and  a  separate 
judgment  c.ould  be  rendered  against  each  in  proportion  to  his  or 
its  liability.^ 

§  299.  III.  Actions  upon  Contract :  Joint  Liability.  Notwith- 
standing the  general  intent  of  the  codes  —  which,  I  think,  is  very 
plain  —  to  substitute  the  equitable  in  place  of  the  legal  doctrines 
upon  the  subject  of  joint  liability  and  of  the  necessary  defendants 
in  actions  brought  thereon,  this  intent  has  not  guided  the  courts 
in  the  decision  of  the  particular  cases  as  they  have  arisen.  The 
overwhelming  weight  of  authority,  in  passing  upon  the  subor- 
dinate and  practical  questions,  has  determined  that  no  such 
change  has  actually  been  made,  and  that  the  common-law  rules 
are  left  controlling  in  all  legal  actions."*  The  only  modification 
—  and  it  is  rather  formal  than  real  —  seems  to  be  in  the  manner 
of  raising  the  questions.  In  an  action  against  joint  deljtors,  or 
to  enforce  a  joint  liability  arising  out  of  contract,  all  of  the  joint 
debtors  or  joint  contractors  that  are  living  must  be  united  as  co- 
defendants  ;  and  a  neglect  to  make  such  union  of  parties,  if 
properly  taken  advantage  of,  will  be  fatal  to  the  action.    In  other 

1  Saorer  v.  Nichols,  1  Daly,  1.  3  cioon  v.  City  Ins.  Co.,  1  Handy,  32, 

'^  Bassett  v.  Crovvell,  3  Robt.  72.     Lia-  per  Gholson  J.,  Superior  Court  of  Cincin- 

bility   in   solido   means   a  joint   liability,  nati. 

■where  all  must  be  proceeiled  against,  and  ■*  This  general  statement  does  not,  of 

the  judgment  is  recovered  against  all,  but  course,  apply  in  those  States  whose  codes 

may  be  fully  enforced  against  either,  and  expressly  change  the  common-law  rules  in 

he  left  to  his  right  of  contribution,  if  any,  respect  to  joint  debtors  and  joint  liability 

against  his  fellows.     In  reference  to  the  upon  contract,  and  expressly  permit  any 

general  doctrine  stated  in  the  text,  consult  number  to  be  sued,  and  also  the  personal 

Smith's   Mercantile   Law,    pp.    287,   238  representatives  of  deceased  joint  debtors 

(Am.  ed.),  and  Abbott  on  Shipping,  pp.  to  be  united  with  the  survivors,  &c.     See 

llG-118  (niarg.  pag.).  supra,  §  118. 


DEFENDANTS    JOINTLY    LIABLE    ON    CONTRACT. 


349 


words,  the  codes,  in  the  absence  of  such  express  provisions  as  are 
found  in  those  of  a  few  States, ^  have  not  changed  tlie  nature  of 
joint  liability  on  contract,  nor  assimilated  it  to  a  several  or  joint 
and  several  one.^  While  this  doctrine  is  generally  accepted  in 
the  States  which  have  adopted  the  reformed  system  of  procedure, 
in  a  few  of  them,  as  has  been  said,  the  language  of  the  statute  is 
much  more  specific,  and  this  language,  it  is  held  by  the  courts, 
substantially  abolishes  all  joint  debts  and  contract  liabilities,  and 
reduces  them  to  joint  and  several  liabilities ;  or,  rather,  it  pro- 
duces a  still  greater  effect,  for,  as  judicially  interpreted,  it  permits 
the  creditor  to  sue  one,  all,  or  any  number  he  pleases,  of  the 
debtors  or  persons  liable  on  the  contract.^ 

§  300.  If  one  of  two  or  more  joint  contractors  is  incapal)le  of 
entering  into  a  valid  agreement,  but  all  are  sued  jointly  in  one 
action,  judgment  may  be  recovered  against  those  alone  who  are 


1  Namely,  Kentucky,  §§  38,  39 ;  Mis- 
souri, §  7;  Iowa,  §  2550;  Kansas,  §  39; 
North  Carolina,  §  63  a. 

-  Bridge  v.  Payson,  5  Sandf.  210 ; 
Wooster  v.  Cliamberlin,  28  Barb.  G02 ; 
Tinkum  v.  O'Neale,  5  Nev.  93;  Keller  v. 
Blasdel,  1  Nev.  491 ;  Jenks  v.  Opp,  43 
Ind.  108,  110  ;  Kamm  v.  Marker,  3  Oreg. 
208  ;  Aylesworth  v.  Brown,  31  Ind.  270  ; 
Bledsoe  v.  Irvin,  85  Ind.  293;  Hardy  v. 
Blazer,  29  Ind.  226;  Braxton  v.  State,  25 
Ind.  82;  Shafer  v.  Moriarty,  46  Ind.  9, 
13.  See  Lane  v.  Salter,  51  N.  Y.  1.  In 
Bledsoe  v.  Irvin,  the  court  said  that  the 
decision  there  made  did  not  conflict  with 
the  doctrine  of  Goodnight  v.  Goar,  30  Ind. 
418,  which  was  that  "  the  code  seems  to 
have  re-enacted  the  rules  which  prevailed 
in  equity  as  to  who  must  join  as  plaintiffs 
and  may  be  joined  as  defendants,"  be- 
cause, even  in  equity,  such  parties  (joint 
debtors)  must  all  be  made  defendants,  and 
thus  brought  before  the  court ;  citing,  in 
support  of  this  equity  rule,  1  Dan.  Ch. 
Prac.  329.  In  Siiafer  u.  Moriarty,  46  Ind. 
9,  13,  the  doctrine  was  applied  to  the 
members  of  a  corporation,  who  were  made 
personally  liable  by  the  statute  for  certain 
debts  of  the  company.  But  if  the  stock- 
holders are  each  made  liable  in  the 
amount  of  the  stock  held  by  them  respec- 
tively, the  liability  is  not  joint,  and  each 
must  be  sued  separately.  Perry  v.  Tur- 
ner, 55  Mo.  418.     If  one  of  two  or  more 


joint  debtors  has  been  discharged  in  bank- 
ruptcy, he  is  still  a  necessary  defendant, 
since  his  defence  is  personal,  and  must  be 
specially  pleaded.  Jenks  v.  Opp,  43  Ind. 
108,  110,  111. 

**  This  is  the  necessary  efTect  of  the 
provision  in  tlie  code  of  each  State 
referred  to  in  the  text,  and  named  in 
note  (1)  last  preceding;  namely,  Kansas, 
Kose  I'.  Williams,  5  Ivans.  483 ;  Board 
of  Commissioners  v.  Swain,  5  Ivans. 
376.  An  action  may  be  brought  on  a 
joint  note  against  one  or  more  of  the 
makers;  and  if  all  are  sued,  the  plaintiff 
may  dismiss  as  to  any  one  or  more,  and 
take  judgment  against  the  others.  Whit- 
tenhall  v.  Korber,  12  Ivans.  618;  Alvey  y. 
Wilson,  9  Ivans.  401,405  ;  Silvery.  Foster, 
9  Ivans.  56,  59.  Iowa,  Ryerson  v.  Hen- 
drie,  22  Iowa,  480,  an  action  sustained 
against  one  of  the  partners  upon  a  firm 
note  ;  the  opinion  of  Cole  J.  is  a  very 
full  discussion  of  the  doctrine  and  of  the 
changes  made  by  the  new  system, — an 
exceedingly  instructive  opinion,  but  too 
long  for  quotation.  Kentucky,  Gossora 
V.  Badgett,  6  Bush,  97 ;  Nichols  v.  Burton, 
5  Bush,  320.  This  last  case  holds  that  a 
judgment  against  one  partner  on  a  firm 
debt  extinguishes  the  demand,  and  is  a 
bar  to  any  subsequent  action  thereon 
against  the  other  partners.  This  result  is 
expressly  guarded  against  by  the  codes  of 
certain  other  States. 


350  CIVIL    REMEDIES. 

capable  of  contracting  and  of  binding  themselves  thereby ;  as, 
for  exami)le,  where  a  note  had  been  given  in  a  firm  name,  and 
the  partners,  who  were  husband  and  wife,  were  both  sued,  judg- 
ment would  be  given  against  tlie  husband  alone. ^  When  a  con- 
tract is  made  b}^  a  firm,  all  the  persons  who  were  then  members 
of  the  partnership  continue  liable  upon  it,  even  though  some  of 
them  ma}'  have  retired  from  the  firm  before  the  contract  was 
broken.  No  arrangement  among  the  partners  themselves  can 
change  their  liability  to  their  common  creditor,  unless  he  is  a 
party  thereto,  and  in  some  manner  discharges  an  outgoing  mem- 
ber from  his  responsibility.  A  suit,  therefore,  where  there  has 
been  no  such  discharge,  should  be  brought  against  all  the  persons 
who  were  partners  at  the  time  when  the  agreement  was  entered 
into  or  the  indebtedness  was  incurred.''* 

§  301.  The  rule  which  requires  that  all  joint  debtors  must  be 
made  defendants,  applies  to  the  cases  where  the  contract  is 
implied,  as  well  as  to  those  in  which  it  is  express.  Thus  when 
two  or  more  administrators,  or  an  administrator  and  an  adminis- 
tratrix, have  been  appointed  over  an  estate,  and  upon  their 
retainer  services  are  rendered  by  a  person  for  their  benefit,  —  as, 
for  example,  by  a  lawyer  retained  to  conduct  legal  proceedings 
affecting  the  estate,  —  thev  are  jointly  liable  to  him  for  his  com- 
pensation, and  should  be  sued  jointly  in  an  action  to  recover  it ; 
their  different  and  even  hostile  interests  in  the  final  distribution 
do  not  alter  the  nature  of  their  liability  upon  the  contract,  express 
or  implied,  made  with  the  person  thus  employed.^  The  case  of 
persons  liable  to  repay  money  which  had  been  paid  by  mistake, 
is  another  familiar  example  of  liability  arising  from  implied  con- 
tract ;  all  the  parties  upon  whom  such  duty  rests  should  be 
joined  in  the  suit  to  recover  the  money.*     The  members  of  a 

1  Brumskill  v.  James,  11  N.  Y.  294.  own  use.  This  action,  which  was  for  the 
See  Groat  v.  Pliillips,  6  N.  Y.  Sup.  Ct.  42,  proceeds,  was  held  properly  brought 
where  a  wife  who  had  joined  in  a  contract  against  both,  as  they  were  jointly  the  con- 
was  omitted  in  the  action.  tracting  parties. 

2  Briggs  V.  Briggs  &  Vose,  15  N.  Y.  ^  Mygatt  v.  Wilcox,  1  Lans.  55. 

471.     The  defendants,  partners,  made  an  *  Duncan  v.  Berlin,  5  Robt.  457.     In 

express  contract  with  plaintiff  to  receive  Kentucky,  by  statute,  a  surety  who  has 

from  him  a  quantity  of  lumber,  and  to  sell  paid  the  debt  or  a  part  thereof  may  sue 

the  same  on  commission  ;  the  lumber  was  the  principal  debtor  and  the  co-surety  in 

delivered  to  and  received  by  them.  Before  one  action,  and  recover  from  the  former 

any  sale,  B.,  one  of  the  partners,  retired  the  whole  amount,  and  from  the  latter  his 

from  the  firm,  and  the  business  was  there-  contributory  share.  Robinson  v.  Jennings, 

after  conducted  by  V.,  who  sold  the  lum-  7  Bush,  630;  2  R.  S.  3'J8,  ch.  97,  §  7. 
ber,  and  converted  the  proceeds  to  his 


DEFENDANTS   JOINTLY   LIABLE   ON   CONTRACT.  351 

joint-stock  association,  not  being  a  corporation,  are  jointly  liable 
as  partners  for  the  debts  and  contracts  of  such  association. 
Although  the  statute  permits  a  creditor  to  sue  the  president 
or  other  managing  officer,  the  judgment  thus  obtained  can  only 
be  enforced  out  of  the  common  property.  If  he  desires  to  enforce 
his  claim  against  the  members  individually,  he  must  unite  all  of 
them  as  defendants,  no  matter  how  numerous,  as  in  an  action 
against  an  ordinary  firm.^  The  apparent  exception,  which  existed 
at  the  common  law,  to  the  general  rule  requiring  all  joint  debtors 
to  be  sued,  remains  in  full  force  under  the  new  system,  so  that  a 
dormant  partner  need  not  necessarily  be  included  as  a  defendant 
in  an  action  against  the  firm,  although  of  course  he  may  be  so 
joined,  if  the  plaintiff  elect.^ 

§  302.  I  am  finally  brought  to  the  case  where  one  or  more  of 
several  joint  debtors  dies.  The  common-law  rule  had  been 
settled  from  the  earliest  period  that  only  the  survivors  could  be 
sued.  Equity  had  modified  this  legal  doctrine,  and  permitted  an 
action  against  the  personal  representatives  of  the  deceased  debtor 
or  contractor.  Has  any  change  in  this  respect  been  introduced 
by  the  new  procedure  ?  It  is  now  established  by  a  great  pre- 
ponderance of  authority,  in  those  States  whose  codes  do  not 
contain  the  special  provisions  concerning  joint  liability  already 
referred  to,-5  that  these  rules,  as  they  existed  immediately  prior 
to  the  reform  legislation,  have  not  been  in  any  manner  modified, 
but  remain  in  active  operation  as  a  part  of  the  present  system. 
The  practical  result  is,  upon  the  death  of  one  or  more  joint 
debtors,  obligors,  or  promisors,  a  legal  action  can  be  maintained 
against  the  survivors  alone,  and  in  such  action  the  personal 
representatives  of  the  deceased  cannot  be  made  defendants  for 
any  purposa.  An  equitable  action,  however,  can  be  maintained 
against  the  administrators  or  executors  of  the  deceased  when, 
and  only  when,  either  the  legal  remedy  against  the  survivors 
has  been  exhausted,  or  such  remedy  would  be  absolutely  useless. 
In  such  equitable  action,  therefore,  the  plaintiff  must  either  aver 
and  prove  the  recovery  of  a  judgment  and  the  issue  and  the 
return  of  an  execution  thereon  unsatisfied,  against  the  survivors, 

1  Kingsland  v.  Braisted,  2  Lans.  17.         sible  one.     Scott  v.   Conway,   58  N.   Y. 

2  North  V.  Bloss,  30  N.  Y.  374 ;  Cook-    619. 

ingliam  i-.^Laslier,  2  Keyes,  454;  Hurlbut  3  gee  these  provisions  in  the  codes  of 

V.  Post,  1  Bosw.  28.     Even  when  the  dor-     Missouri,  Kentuclcy,  Iowa,  Kansas,   and 
mant  partner  is  the  husband  of  the  osten-     North  Carolina,  supra,  §  118. 


352 


CIVIL   REMEDIES. 


or  else  that  the  survivors  are  utterly  insolvent.^  The  rule  thus 
established  iu  New  York  and  some  other  States  differs  from  that 
prevailing  in  England  in  a  single  particular.  The  English  Court 
of  Chancery  permits  a  suit  against  the  personal  representatives  of 
the  deceased  at  once,  without  attempting,  much  less  exhausting 
any  remedy  at  law  against  the  survivor.  In  other  words,  the 
creditor  has  his  option  at  all  times  to  sue  the  survivors  at  law,  or 
the  representatives  of  the  deceased  in  equity,  whether  the  sur- 
vivors are  solvent  or  not ;  and  this  doctrine  has  been  adojjted  in 
several  American  States.^ 

§  303.  These  doctrines  and  modes  of  procedure  in  reference  to 
the  enforcing  a  joint  demand  when  one  debtor  dies,  have  not, 
however,  been  accepted  in  all  the  States  which  have  adopted  the 
new  system.  In  Indiana  it  is  declared  to  be  the  true  meaning 
and  intent  of  the  provisions  of  the  code  abolishing  the  distinctions 
between  legal  and  equitable  actions,  and  introducing  the  equitable 
principles  concerning  parties,  and  providing  for  a  severance  in 
the  judgment,  that  upon  the  death  of  one  or  more  joint,  or  joint 


1  Voorhis  v.  Chikls's  Executors,  17 
N.  Y.  354 ;  Richter  v.  Poppenhausen,  42 
N.  Y.  373  ;  Pope  v.  Cole,  55  N.  Y.  124; 
Lane  v.  Doty,  4  Barb.  534;  Voorhis  v. 
Baxter,  1  Abb.  Pr.  43 ;  Morehouse  v. 
Ballou,  16  Barb.  289,  an  action  on  a  joint 
and  several  promissory  note  against  one 
maker  and  the  executor  of  tlie  otlier,  held 
improperly  broug-ht.     Bentz  v.  Tliurher, 

I  N.  Y.  Sup.  Ct.  645 ;  Maples  v.  Geller,  1 
Kev.  233,  237,  239  ;  Fowler  v.  Houston,  1 
Nev.  469,  472  ;  Kimball  v.  Whitney,  15 
Ind.  280,  283;  Barlow  v.  Scott's  Admin- 
istrator, 12  Iowa,  63;  Pecker  v.  Cannon, 

II  Iowa,  20;  Marsh  v.  Goodrell,  11  Iowa, 
474 ;  Williams  v.  Scott's  Administrator, 
11  Iowa,  475.  The  last  four  cases  were 
all  on  joint  and  several  notes,  and  it  was 
held  that  the  rule  applied  to  them  as  well 
as  to  obligations  purely  joint.  It  sliould 
be  observed  that  all  these  Iowa  cases  were 
decided  prior  to  the  "revision"  of  tlie 
statutes  made  in  1860.  County  of  Wa- 
pello V.  Bigham,  10  Iowa,  39 ;  Childs  v. 
Hyde,  10  Iowa,  294 ;  People  v.  Jenkins, 
17  Cal.  500;  Humphreys  v.  Crane,  5  Cal. 
173;  May  v.  Hanson,  6  Cal.  642.  But  in 
Bank  of  Stockton  v.  Howland,  42  Cal.  129, 
an  action  against  the  survivors  and  the 
administrator  of  a  deceased  joint  debtor 


was  held  to  be  properly  brought ;  the 
judgment,  however,  should  be  severed,  and 
against  the  survivors  should  be  de  bonis 
projiriis,  and  against  the  administrator  de 
bonis  testdtoris.  It  was  decided  in  Parker 
V.  Jackson,  16  Barb.  33,  per  Gridley  J., 
that  an  action  could  be  maintained  against 
the  survivor  and  the  personal  represen- 
tative of  a  deceased  maker  of  a.  joint  and 
several  note,  without  alleging  or  proving 
the  insolvency  of  tlie  survivor.  For  the 
proceedings  when  the  cause  of  action  is 
for  a  tort,  and  surA'ives  upon  the  death  of 
one  of  the  wrong-doers,  see  Bond  v.  Smith, 
6  N.  Y.  Sup.  Ct.  239  ;  and  when  the  prom- 
ise is  joint  and  several,  see  Spe3'ers  v. 
Fisk,  6  N.  Y.  Sup.  Ct.  197,  and  cases 
cited.  When  an  execution  against  the 
survivors  of  joint  debtors  has  been  re- 
turned unsatisfied,  the  action  against  the 
personal  representatives  of  the  deceased 
debtor  will  lie,  although  it  may  turn  out 
that  the  survivors  were  not  insolvent. 
Pope  V.  Cole,  55  N.  Y.  124. 

•^  Wilkin.«on  v.  Henderson,  1  My.  &  K. 
582 ;  Braitiiwaite  v.  Britain,  1  Keen, 
219;  Brown  v.  Weatherby,  12  Sim.  6,  11. 
The  survivors,  however,  should  be  made 
codefendants. 


DEFENDANTS   JOINTLY   LIABLE    ON   CONTRACT. 


363 


and  several  debtors  or  obligors,  an  action  will  lie  at  once  against 
the  survivors  and  the  administrators  or  executors  of  the  deceased. ^ 
In  certain  States,  special  provisions  of  the  codes,  or  of  other  stat- 
tutes,  expressly  authorize  an  action  to  be  brought  in  the  first 
instance  against  the  survivors  and  the  personal  representatives 
of  the  deceased  joint  debtor,  or  even  against  some,  any,  or  one  of 
them,  at  the  option  of  the  plaintiff.  Such  statutory  authority  is 
found  in  Ohio,'^  lowa,^  Kentucky,^  Missouri.^ 


1  Braxton  v.  The  State,  25  Ind.  82 ; 
Eaton  V.  Burns,  31  Ind.  390.  Tlie  former 
of  tliese  cases  is  an  able  and  instructive 
decision ;  tiie  opinion  presents  the  equi- 
table tlieory  of  interpreting  the  code  in  a 
clear  and  convincing  manner.  The  action 
was  against  tliree  survivors  and  the  ad- 
ministrators of  tiie  deceased  obligors  on 
a  bond.  After  stating  that  there  were  no 
special  provisions  on  the  subject  in  the 
Indiana  Code  (as  there  are  in  some  States), 
and  after  qroting  the  sections  concerning 
forms  of  action  and  parties  defendant, 
Elliott  J.  proceeds :  "  It  was  manifestly 
the  intention  of  the  legislature  in  the 
adoption  of  these  provisions  to  afford  as 
far  as  possible  a  simple  and  direct  means 
of  bringing  all  the  parties  having  an  in- 
terest in  the  controversy  before  tiie  court, 
and  of  settling  all  their  rights  in  a  single 
litigation,  and  thereby  to  avoid  a  multi- 
plicity of  suits."  It  was  further  held 
that  the  bond,  though  in  terms  joint  and 
several,  was  to  be  regarded  as  joint,  be- 
cause the  plaintiff  had  elected  to  treat  it 
as  such.  Vooriiis  v.  Child's  Ex'ors,  s»/«y(, 
was  expressly  disapproved.  In  Klussman 
V.  Copeland,  18  Ind.  3U6^  the  uniting  the 
administrator  of  a  deceased  joint  debtor 
as  a  codefendant  with  tiie  survivor  was 
declared  not  to  be  7iecessari/.  When  a 
bond  had  been  executed  by  a  guardian 
and  his  surety,  and  the  surety  had  died, 
the  action  on  the  bond  may  be  brought  in 

3  Code  of  Iowa,  §  2550.  See  supra, 
§  118.  Sellon  v.  Bradcn,  13  Iowa,  365. 
This  was  an  ordinary  legal  action  against 
the  administrator  of  a  deceased  joint 
obligor,  the  survivor  living.  The  court, 
after  quoting  §  2764  of  tlie  code  of  1860 
(which  is  tlie  same  as  §  2550  of  the  pres- 
ent code),  and  after  showing  that  a  suit  in 
equity  could  have  been  maintained  prior 


Indiana  against  the  surviving  principal 
and  the  heirs  of  the  deceased  obligor,  the 
latter  being  liable  of  course  to  the  extent 
of  the  lands  descended  to  them.  Voris  v. 
State,  ex  rel.  Davis,  47  Ind.  345,  349,  350  ; 
and  an  action  may  be  maintained  on  an 
administrator's  bond  against  the  surviv- 
ing principal  —  the  administrator  —  and 
the  executor  of  a  deceased  surety.  The 
bond  was  assumed  to  be  joint,  and  the 
judgment  was  against  both  defendants 
in  solldo  for  the  full  amount.  Myers  v. 
State,  ex  rel. ;  McCray,  47  Ind.  293,  297  ; 
citing  and  following  Braxton  v.  State, 
supra,  and  Owen  v.  State,  25  Ind.  107. 

2  Burgoyne  v.  Ohio  Life  Ins.  &  T.  Co., 
5  Ohio  St.  586,  587.  This  was  an  action, 
against  the  surviving  makers  and  the- 
administrator  of  a  deceased  maker  of  a' 
promissory  note.  Kanney  C.  J.,  after 
stating  the  original  common-law  rule,  and 
quoting  a  statute  of  Ohio  (Swann's  K.  S. 
p.  378)  as  follows, —  "  When  two  or  more 
persons  shall  be  indebted  on  a  joint  con- 
tract or  upon  a  judgment  founded  upon 
any  such  contract,  and  either  of  them 
shall  die,  his  estate  shall  be  liable  there- 
for as  if  the  contract  had  been  joint  and 
several,  or  as  if  the  judgment  had  been 
against  him  alone,"  — proceeils  (p.  587)  : 
"  This  statute  ettected  an  entire  abrogation 
of  the  common-law  principle  to  which 
allusion  has  been  made,  and  left  the  estate 
of  the  joint  debtor  liable  to  every  legal 

to  and  independently  of  this  statute, 
added  :  "  We  see  no  reason,  therefore,  for 
turning  the  plaintiff  over  to  his  remedy 
in  equity,  when  that  remedy',  by  a  change 
of  statute,  has  been  so  modified  as  to 
enable  the  plaintiff  to  avail  himself  of  it 
at  law." 

*  Code  of  Kentucky,  §  39,  supra,  §  118. 
8  Code  of  Missouri,  §  7,  supra,  §  118. 
23 


354  CIVIL   REMEDIES. 

§  304.  Although  the  interpretation  put  upon  the  codes  in 
reference  to  this  particular  subject  by  the  courts  of  New  York 
and  of  many  other  States,  is  clearly  established  by  an  overwhelm- 
ing weight  of  authority,  I  do  not  hesitate  to  say  that  it  is  as 
plainly  opposed  to  the  obvious  intent,  and  even  to  the  very  letter 
of  the  reform  legislation.  When  the  statute  has  in  express  terms 
abolished  all  distinctions  between  actions  at  law  and  suits  in 
equity,  has  declared  that  in  all  cases  any  person  may  be  made  a 
defendant,  who  has  or  claims  an  interest  in  the  controversy 
adverse  to  the  plaintiff,  or  who  is  a  necessary  party  to  a  complete 
determination  and  settlement  of  the  questions  involved,  and  has 
finally  authorized  a  several  judgment  to  be  rendered  in  any 
action,  it  is  simply  a  palpable  violation  of  these  positive  pro- 
visions to  say  that  a  creditor  shall  not  maintain  a  legal  action 
against  the  personal  representatives  of  a  deceased  joint  debtor, 
but  shall  be  driven  to  an  equitable  suit,  and  that  only  in 
a  certain  contingency ;  it  is  a  useless  sacrifice  to  the  merest 
form.  I  would  not  be  understood  by  this  criticism  as  deny- 
ing the  existence  of  the  rule,  for  it  is  too  well  settled  to  be 
doubted.  If,  however,  the  courts  shall  at  any  time  accept  the 
intent  of  the  legislatures,  as  it  is  plainly  shown  in  their  statutory 
work,  and  shall  adopt  a  general  equitable  theory  of  interpreta- 
tion, which  shall  be  applied  in  all  cases  to  all  actions  without 
reservation  or  exception,  so  that  there  shall  result  one  single  and 
uniform  system  of  procedure,  then  without  doubt  the  rule  that  I 
am  criticising  will  be  abandoned,  and  the  conclusions  reached  by 
the  Indiana  courts  will  be  accepted  in  all  the  States. 

§  305.  IV.  Actions  iipon  Contract:  Joint  and  several  liability. 

remedy  as  fully  as  though  the  contract  sections  permit  the  joinder  of  the  sur- 

liad  been  joint  and  several.     Until    tiie  vivor  or  survivors  and  the  personal  rep- 

,passage  of  the  act  to  establish  a  code  of  resentatives   of  the  deceased   obligor  in 

civil  procedure,  it   is   true   his   personal  the  same  action,  whether  tlie  contract  is 

representatives  and    tiie  survivors  could  in  terms  joint  and  several,  or  is  made  so 

not  be  sueil  in  the  same  action.     But  by  by  the  90th  section  of  the  administration 

the  38tli  section  of  tiiat  act  it  is  provided  statute  upon  the  death  of  tiie  joint  obli- 

tliat '  persons  severall3' liable  on  the  same  gor,  and  authorize  a  separate  judgment 

obligation  or  instrument  may  all  or  any  against  each  according  to  the  nature  of 

of  them  be  included  in  the  same  action  their  respective  liabilities."    The  construc- 

at  the  option  of  the  plaintiff.'     And  the  tion  here  put  upon  the  Ohio  statutes  is 

•371st  section  allows  a  several  judgment  certainly  far  more  equitable,  and  in  ac- 

to  be  given  against  any  one  of  the  defend-  cordance  with  their  intent,  than  that  put 

ants  as  tlie   nature   of  the  case  may  re-  upon  the  code  of  New  York, 
quire.     In  tiie  opinion  of  the  court,  tiiese 


DEFENDANTS    JOINTLY    AND    SEVERALLY   LLVBLE.  355 

The  former  doctrine  of  the  common  law  concerning  joint  and  sev- 
eral contracts  and  suits  thereon,  has  not  been  affected  by  the  new 
procedure,  except  in  those  few  States,  already  referred  to,  whose 
codes  or  statutes  permit  the  creditor  in  all  cases  to  sue  all,  or 
any,  or  one  of  the  debtors  or  co-contractors.     The  general  lan- 
guage found  in  most  of  the  codes  has  wrought  no  change  in  the 
practical  rules.     This  proposition  is  sustained  by  many  of  the 
cases  in  reference   to  joint  liability,  cited  under  the  foregoing 
paragraphs ;  it  is  also  recognized  or  distinctly  affirmed  in  many 
particular  instances,  among  which   I  mention  a  few.     Two  in- 
surance companies  had  insured  a  building  by  separate  policies, 
each  of  which  contained  the  usual  rebuilding  clause.     Upon  the 
occurrence  of  a  fire,  they  united  in  a  joint  notice  of  their  election 
to  rebuild,  and  partly  completed    the  work  under  such  notice. 
Default  being  made  by  them,  the  owner  brought  an  action  against 
one  of  them  to  recover  damages  for  the  non-performance  of  the 
contract  to  rebuild.     It  was  held  that  by  the  election  the  com- 
panies had  turned  their  policies  into  building  contracts,  and  were 
liable  according  to  the  terms  thereof,  and  that  the  owner  might 
sue  both  in  a  joint  action,  or  either  in  a  separate  action ;  in  other 
words,  that  their  liability  was  joint  and  several.^     Premises  were 
leased  with  covenants  against  under-letting,  and  against  using 
the  building  for  certain  purposes.     The  lessee  sub-let  j)ortions  to 
different  under-tenants,   who  violated  the    covenants    by  using 
them  in  the  prohibited  manner.     An  action  against  all,  —  the 
lessee  and  the  sub-tenants,  —  to  recover  damages  for  the  breach 
of  the  covenants,  was  held  proj)er,  although  it  was  said  the  plain- 
tiff must  have  a  separate  judgment  against  each  defendant  for  tlie 
special  injury  and  wrong  done  by  him.     A  separate  action  might 
also  have  been  brought  against  the  original  lessee  and  each  of 
the  under-tenants.^     When  an  express  joint  and  several  note  is 
made  by  a  firm,  and  is  signed  by  the  firm  name,  it  retains  its  joint 
and  several  ciiaracter ;  an  action  may  be  brought  either  against 
all  the  partners,  or  against  each  or  one  of  them.^    In  certain  States, 
as  has  already  been  mentioned,  the  express  language  of  the  codes 

1  Morrell  v.   Irving  Fire  Ins.  Co.,  33  in  closer  liarmony  with  the  pLiin  intent 
N.  Y.  429.  of  tlie  code  than  many  others  which  have 

2  Gillilan  v.  Norton,  6  Robt.  546.   The  been  cited.      See  Trabue  v.  McAdams,  8 
ruling  of  the  court  in  respect  to  a  separate  Bush,  74. 

judgment   was  based  upon  §  274  of  the  ^  Snow  v.  Howard,  35  Barb.  55. 

New  York  code.     The  entire  decision  is 


356  CIVIL   REMEDIES. 

permits  an  action  against  any  number  of  joint  and  several  debtors 
at  the  jjlaintiff's  option,  as  well  as  against  an}'  number  of  joint 
debtors.^  If  several  defendants  are  sued  jointly  upon  an  alleged 
joint  and  several  contract,  the  plaintiff  may  sever  in  the  recovery, 
and  take  judgment  against  a  portion  only  if  the  evidence  shows 
such  a  liability  ;  and  when  one  of  two  or  more  persons  jointly  and 
severally  liable  dies,  the  creditor  may  at  once  sue  the  personal 
representatives  of  the  deceased  in  a  separate  action,  or  may  sue 
the  survivors.^ 

§306.  V.  Actions  vpon  Contract :  Several  liahility.  No  change 
has  been  made  in  the  common-law  doctrines  and  rules  concerning 
several  liability  arising  from  contract,  except  that  produced  by 
the  provision  found  in  all  the  codes  in  substance  as  follows. 
Persons  severally  liable  on  the  same  obligation  or  instrument, 
including  the  parties  to  bills  of  exchange,  promissory  notes,  and 
negotiable  bonds,  —  and  in  some  States,  sureties,  —  may  all,  or 
any  of  them,  be  included  in  the  same  action  at  the  option  of  the 
plaintiif.  This  clause  certainly  effects  a  very  important  change 
in  the  ancient  rule,  in  all  cases  where  the  liability  flows  from  an 
instrument  or  contract  in  writing,  in  that  it  permits  a  creditor  to 
sue  all  the  several  promisors  or  any  number  of  them,  instead  of 
restricting  him  to  a  separate  action  against  each.^  The  effect  of 
this  clause,  and  the  extent  of  the  change  wrought  by  it,  Avill  be 
discussed  at  large  in  Section  IX.  of  the  present  chapter.  With 
this  exception,  the  common-law  doctrine  is  unaltered.  In  many 
States  it  is  settled  by  a  decided  preponderance  of  authority,  that 
a  principal  debtor  and  a  guarantor  thereof  cannot  l)e  joined  as 
codefendants  in  the  same  action.  Even  when  the  principal  debt 
is  evidenced  by  a  written  instrument,  and  the  guaranty  is  in- 
dorsed upon  the  same  paper,  the  parties  are  not  "  severally  liable 
on  the  same  obligation  or  instrument,"  and  do  not  fall  within  the 
provision  last  above  quoted.  A  separate  action  must  be  brought 
against  the  principal  debtor  and  against  the  individual  guarantor.* 

1  Rose    V.    Williams,    5    Ivans.    483 ;  liable  on  the  same  instrument ;  and  see 

Board    of  Commissioners    v     Swain,    5  Powell  v.  Powell,  48  Cal.  2o4. 
Kans.  376 ;  Knpfer  c.  Sponliorst,  1  Kans.  ^  Speyers  v.  Pisk,  6  N.   Y.  Sup.  Ct. 

75;  Rose  r.  Maiklen,  1  Kans.  445  ;  Sellon  197;    Parker  v.   Jackson,    16    Barb.    33; 

r.  Brailen,  13  Iowa,  365  ;  Hyerson  >•.  Hen-  Mcintosh  r.  Ensijjn,  28  N.  Y.  169  ;  Har- 

tlrie,   "22   Iowa,   480;    Clapp   v.    Preston,  rinjjton  v.  Higliani,  15  Barb  524. 
15  Wise.  543.     This  last  case  arose  under  ■•  See  Powell  v.  Powell,  48  Cal.  234. 

a  provision  identical   with   §  120  of  the  *  Le  Roy  r.  Shaw,  2  Diier,  626;  De 

New   York  code  as  to  parties  severally  Ridder    i;.  Sehernierhorn,  10  Barb.  638; 


DEPENDANTS   LIABLE    FOR   TORTS.  357 

This  doctrine  does  not  prevail  in  all  the  States.  It  is  held  in 
some,  by  very  able  courts,  that  where  the  payee  or  owner  of  a 
promissory  note  transfers  the  same,  and  writes  a  guaranty  upon 
it,  he  may  be  sued  as  a  guarantor,  together  with  the  maker  there- 
of, in  one  action  ;  and  the  same  doctrine  has  been  applied  to  a 
similar  transfer  and  guaranty  of  a  contract  to  pay  money  not 
negotiable  in  form.^  In  an  ordinary  action  to  recover  upon  a 
debt  due  by  an  insolvent  corporation,  over  which  a  receiver  has 
been  appointed,  he  is  not  a  necessary,  nor  even  proper  codefend- 
ant  when  no  cause  of  action  is  stated,  and  no  relief  is  prayed 
against  him.^ 

§  307.  VI.  Actions  for  Torts.  The  common-law  doctrines  con- 
cerning the  liability  of  tort-feasors,  and  as  to  the  joinder  or 
separation  of  them  in  actions  brought  to  recover  damages  for  the 
wrong,  are  entirely  unchanged  by  the  new  system  of  procedure. 
It  is  unnecessary  to  repeat  these  ancient  rules,  since  they  were 
fully  stated  in  the  former  part  of  this  section  ;  ^  that  they  are  still 
in  operation  with  their  full  force  and  effect,  is  sufficiently  shown 
by  the  following  particular  instances.  In  general,  those  who 
have  united  in  the  commission  of  a  tort  to  the  person  or  to  prop- 
erty, whether  the  injury  be  done  by  force  or  be  the  result  of  neg- 
ligence or  want  of  skill,  or  of  fraud  and  deceit,  are  liable  to  the 
injured  part}'^  without  any  restriction  or  limit  upon  his  choice  of 
defendants  against  Avhom  he  may  proceed.  He  may,  at  his  option, 
sue  all  the  wrong-doers  in  a  single  action,  or  may  sue  any  one,  or 
may  sue  each  in  a  separate  action,  or  may  sue  any  number  he 
pleases  less  than  all  ;  the  fullest  liberty  is  given  him  in  this 
respect.  The  only  exceptions  are  those  few  instances  in  which 
the  tort  from  its  very  nature  must  be  a  separate  act  impossible  to 
be  committed  by  two  or  more  jointly.^     A  sheriff  and  his  deputy 

Allen  V.  Fosgate,  11  How.  Pr.  218  ;  Pha-  that  the  court  does  not  lay  any  stress 

len  V.  Dingee,  4  E.  D.  Smith,  379;  Bon-  upon  tliis  fact  as  a  ground  for  its  deci- 

durant  v.  Bladen,  19  Ind.  160;  Virden  v.  sion. 

Ellsworth,   15   Ind.   144.      See  Stout   v.  '^  Arnold   v.    Suffolk  Bank,   27  Barb. 

Noteman,  30  Iowa,  414,  415 ;  Tucker  v.  424. 

Shiner,  24  Iowa,  334.  ^  See  supra,  §§  281,  282. 

I  Marvin  v.  Adamson,  11  Iowa,  371  ;  *  Creed  v.  Hartman,  29  N.  Y.  591,  592, 

Mix  V.  Fairchild,  12  Iowa,  351  ;  Tucker  597;  Roberts  v.  Johnson,  58  N.  Y.  613, 

V.   Sliiner,  24  Iowa,    334  ;    Peddicord    v.  616,  an  action  against  one  partner  only 

Wliittam,  9  Iowa,  471.    It  is  to  be  noticed  wiiere  the  entire  firm  had  been  guilty  of 

that  in  each  one  of  these  cases  tlie  guar-  negligence;    Chester    v.    Dickerson,    52 

antor  was  the  original  payee  or  promisee.  Barb.  349,  358 ;  Phelps  v.  Wait,  30  N.  Y. 

and  also  the  assignor  ;  but  it  must  be  said  78,  an  action  against  principal  and  agent 


358 


CIVIL   REMEDIES. 


may  be  sued  jointly  for  the  trespasses  and  other  wrongful  acts 
done  by  tlie  latter  in  his  official  capacity  ;  the  deputy,  because 
he  actually  commits  the  tort,  and  the  sheriff,  because  he  is  the 
principal.'  A  passenger  in  the  cars  of  one  company  was  injured 
by  a  collision  with  a  train  of  another  company  Avhich  used  the 
same  track.  The  servants  of  both  companies  were  in  fault,  and 
as  the  wrong  was  caused  by  the  negligence  of  each  corporation, 
an  action  brought  against  them  jointly  was  sustained.^ 

§  308.  In  order,  however,  that  the  general  rule  thus  stated 
should  apply,  and  a  union  of  wrong-doers  in  one  action  should  be 
possil)le,  there  must  be  some  community  in  the  wrong-doing 
among  the  parties  who  are  to  be  united  as  codefendants ;  the 
injury  must  in  some  sense  be  their  ^omi  work.  It  is  not  enough 
that  the  injured  party  has  on  certain  grounds  a  cause  of  action 
against  one,  for  the  physical  tort  done  to  himself  or  his  property, 
and  has,  on  entirely  different  grounds,  a  cause  of  action  against 
another  for  the  same  physical  tort;  there  must  be  something 
more  than  the  existence  of  two  separate  causes  of  action  for  the 
same  act  or  default,  to  enable  him  to  join  the  two  parties  liable 
in  the  single  action.     This  principle  is  of  universal  application.^ 


for  negligence  of  the  agent ;  Kasson  v. 
People,  44  Barb.  347  ;  Wood  v.  Luscomb, 
23   Wise.    287,   an    action    against    one 
partner  for  negligence  by  the  firm  ;  Fay 
V.  Davidson,  13  Minn.  523;  Mandlebauin 
V.  Russell,  4  Nev.  551 ;  McReady  v.  Rogers, 
1  Neb.  124  ;  Murphy  v.  Wilson,  44  Mo. 
313 ;  Allred  v.  Bray,  41  Mo.  484 ;  Brady 
V.  Ball,  14  Ind.  317,  action  for  injury  done 
by  trespassing  animals  which  belonged  to 
several  persons  jointly ;  Turner  v.  Hitch- 
cock, 20  Iowa,  310,  a  very  elaborate  and 
instructive  judgment ;    Buckles   v.  Lam- 
bert, 4  Mete.  ( Ky. )  330 ;  Hubbell  v.  Meigs, 
50  N.  Y.  480,  489  ;  Mcintosh  v.  Ensign, 
28  N.  Y.  169 ;  BuUis  v.  Montgomery,  50 
N.  Y.  352.     Where  a  right  of  action  for 
tort  exists  against  seA-eral,  and  is  of  such 
a  character  that  it  survives  upon  the  death 
of  the  wrong-doer,  if  one  of  the  persons 
liable  dies,  the  action  may  be  brought  or 
continued  against  his  personal  represen- 
tatives ;  but  it  is  the  settled  rule  in  New 
York  that  the  action  in  such  case  must  be 
divided,  and  one  suit  be  brought  or  con- 
tinued  against  the    survivors,   and    one 
against    the    representatives  of   the  de- 


ceased. Bond  V.  Smith,  6  N.  Y.  Sup.  Ct. 
239;  Heinmuller  v.  Gray,  13  Abb.  Pr. 
N.  s.  299 ;  Union  Bank  v.  Mott,  27  N.  Y. 
633;  Gardner  v.  Walker,  22  How.  Pr. 
405 ;  McVean  v.  Scott,  46  Barb.  379. 

1  Waterbury  v.  Westervelt,  9  N.  Y, 
598 ;  King  v.  Orser,  4  Duer,  431 ;  contra, 
Moulton  V.  Norton,  5  Barb.  286,  296,  per 
Pratt  J.  This  dictum  is  clearly  erro- 
neous. 

i  Colegrove  v.  N.  Y.  &  N.  H.  R.  R., 
20  N.  Y.  492 ;  Mooney  v.  Hudson  River 
R.  R.,  5  Robt.  548. 

3  Trowbridge  v.  Porepaugh,  14  Minn. 
133.  P.,  owning  a  lot  in  St.  Paul 
abutting  on  a  street,  dug  and  left  open  a 
dangerous  hole  in  the  street,  into  which 
the  plaintiff  fell.  He  sues  the  city  and 
F.  jointly,  basing  his  claim  upon  the 
above  acts  of  P.,  and  upon  the  gen- 
eral duty  of  the  city  in  respect  of 
its  streets.  The  court  held  that  such  a 
joint  action  could  not  be  maintained. 
"  The  liability  of  the  city  depends  on  a 
state  of  facts  not  affecting  its  codefendant, 
and  the  converse  is  equally  true.  Neither 
is,  in  fact  nor  in  law,   chargeable  with 


DEFENDANTS  LIABLE  FOR  TORTS.  359 

§  309.  The  general  doctrine  under  examination  embraces  as 
well  the  case  of  a  joint  conversion  of  chattels,  as  any  other  in- 
stance of  joint  tort  to  property  or  person.  When  two  or  more 
have  united  in  the  act  which  amounts  to  a  conversion,  or  have  so 
interfered  with  the  chattel  as  to  constitute  a  conversion  within 
the  legal  meaning  of  the  term,  the  owner  or  person  having  the 
special  property  may  sue  all  or  one  or  any,  as  in  the  case  of  any 
other  tort.  But  there  must  be  a  community  in  the  wrong-doing  ; 
the  wrongful  act  must  constitute  a  conversion  on  the  part  of  all, 
and  in  that  act  all  must  have  engaged.  When  such  is  the  case, 
the  law  does  not  apportion  the  responsibility,  but  holds  each 
liable  for  the  whole  amount.  If  there  is  no  such  community,  a 
joint  action  for  the  conversion  will  not  lie,  and,  a  fortiori,  it  will 
not  lie  when  the  defendants  have  not  each  been  guilty  of  an  act 
which  is  a  wrongful  conversion.^ 

§  310.  The  same  general  doctrine,  under  the  same  limitations, 
controls  the  action  of  replevin,  or  detinue, — or  to  recover 
possession  of  chattels,  which  at  the  common  law  was  regarded 
as  a  personal  action  based  upon  the  tortious  act  of  the  defend- 
ant, in  his  wrongful  detention  or  taking  of  the  goods.  If, 
therefore,  there  is  a  joint  wrongful  taking  or  detention  of  the 

nor  liable  for,  the  matter  set  up  as  a  which  was  reversed  by  the  Court  of  Ap- 
cause  of  action  against  the  other.  They  peals;  but  the  judges  who  united  in  the 
did  v\ot  jointly  conduce  to  the  injury."  decision  did  not  unite  in  any  reasons  there- 
1  Manning  v.  Monaghan,  23  N-  Y.  539.  for ;  and  nothing  was  determined  by  the 
Plaintiff  was  the  mortgagee  of  chattels,  court.  On  tlie  new  trial,  the  action  was 
the  mortgagor  being  entitled  to  and  being  discontinued  as  to  G.,  and  judgment  was 
in  possession  during  the  year  the  mortgage  again  recovered  against  the  other  two  for 
had  to  run.  Defendant  Monaghan  recov-  the  value  of  the  goods.  This  judgment 
ered  a  judgment  against  the  mortgagor,  was  again  reversed  by  the  Court  of  Ap- 
upon  which  supplementary  proceedings  peals,  which,  on  the  second  appeal,  defin- 
were  instituted,  and  defendant  C.  was  ap-  itively  held  that  M.  and  C.  were  not 
pointed  receiver  therein.  He  took  the  trespassers,  and  had  not  converted  the 
goods  from  the  mortgagor  before  the  j-ear  plaintiff's  goods.  If  they  were  liable  at 
expired,  and  sold  them  at  auction  without  all,  it  would  be  in  a  special  action  for 
notice  of  the  plaintiff's  mortgage  lien,  and  damages  for  injury  to  the  plaintiff's  re- 
purporting  to  sell  tliem  free  from  any  versionary  interest.  See  s.  c.  28  N.  Y. 
claim.  One  parcel  was  sold  to  defendant  585.  This  final  decision  was  put  on  the 
G.  After  the  expiration  of  the  year,  plain-  ground  that,  at  the  time  of  tiie  acts  done 
tiff  demanded  this  parcel  from  G.,  and  by  defendants,  tiie  plaintiff  had  no  prop- 
upon  refusal,  he  brought  this  action  erty  in  the  goods  entitliiif/  him  to  the  ponses- 
against  Monaghan  the  judgment  creditor,  sion  thereof.  If  the  mortgage  was  then  due, 
C.  the  receiver,  and  G.  the  purchaser,  for  and  there  had  been  default,  or  if  the  plain- 
a  conversion,  claiming  from  the  first  two  tiff  had  been  entitled  to  possession,  the 
the  whole  value  of  the  goods,  and  from  G.  action  might  perhaps  have  been  main- 
the  value  of  the  parcel  bought  by  him.  tainable. 
Judgnieut    was    recovered    against    all, 


360  CIVIL   REMEDIES. 

goods,  the  action  will  lie  against  the  wrong-doers  jointly,  although 
one  of  them  may  have  parted  with  his  actual  possession.  Thus, 
where  goods  had  been  sold  and  delivered  to  a  fraudulent  vendee, 
so  that  the  vendor  might  rescind  and  retake  the  chattels,  and 
this  vendee  had  afterwards  assigned  them  to  an  assignee  in  trust 
for  creditors,  and  the  possession  had  actually  been  transferred  to 
such  trustee,  an  action  by  the  vendor  to  recover  the  possession 
of  the  goods  was  held  to  be  properly  brought  against  both  jointly, 
the  assignee  not  being  a  purchaser  for  value. ^ 

§  311.  The  common-law  doctrines  relating  to  suits  against 
common  carriers  are  unaltered.  Although  an  action  may  be 
brought  upon  their  contract  express  or  implied  to  carry  the  goods 
safel}',  yet  the  ultimate  ground  of  their  liability  is  their  general 
duty,  the  violation  of  which  is  a  tort.  The  usual  form  of  the 
action  under  the  old  system  was  Case  and  not  Assumpsit.  The 
owner  of  goods  that  have  been  lost  or  damaged  in  the  carriage, 
may  therefore  treat  the  default  as  a  tort,  and  sue  all  or  any  of 
the  parties  at  his  election.^ 

§  312.  A  joint  liability  for  an  injury  may  arise  from  the  owner- 
ship and  occupancy  of  real  property.  As  an  example,  where  the 
owner  of  a  house  had  constructed  a  coal-hole  in  the  sidewalk  in 
such  a  manner  and  position  as  to  be  dangerous  to  passers,  and  had 
leased  the  premises  to  a  tenant  who  used  the  coal-hole,  and  a  person 
passing  on  the  sidewalk  had  fallen  into  it  and  been  injured,  both 
the  owner  and  the  tenant  were  held  liable,  and  a  joint  action  against 
them  was  sustained.^  In  general,  the  principal  and  his  agent  may 
be  sued  jointly  for  any  trespass  or  other  wrongful  act  done  by 
the  agent  while  acting  within  the  scope  of  his  employment.  The 
agent  is  personally  responsible,  because  his  employment  will  not 
shield  him  from  the  consequences  of  his  torts,  and  the  principal 


1  Nichols  V.  Michaels,  23  N.  Y.  264.  Altliougli   the   court  rather  treated   the 

See,  especially,  the  opinions  of  James  J.,  action  as  hasetl  on  contract,  and  discussed 

p.  268  ft  sc<].,  and  of  Selden  J.,  pp.  270,  the  question,  whether  in  sucli  a  case  the 

271,  where  tlie  nature  of  the  action  before  judgment  could  be  severed,  yet  the  princi- 

and  since  the  code  is  discussed  at  length,  pie  of  tlie  text  was  recognized;  and  there 

■-  Mcintosh  V.  Ensign,  28  N.   Y.  169.  is  no  pretence  tliat  the  well-settled  com- 

This   case  does  not  directly  decide   the  mon-law  rule  has  been  clianged. 

point  stated  in   the  text ;  for  the  action  *  Irvin  v.  Wood,  4  Robt.  138,  5  Robt. 

was  nominally  against  all  the  parties, —  482  ;  s.  c.  on   appeal,  51  N.  Y.  224,  230. 

five   in  number, —  while  two   only  were  But   see   Trowbridge   v.    Forepaugh,    14 

actually  served   with   process,  and  judg-  Minn.  133,  supra,  §  308  (n.). 
ment  was  recovered  against  them  alone. 


DEPENDANTS    LIABLE    FOR   TORTS.  361 

is  liable  upon  the  familiar  doctrine  of  agenc3\  The  injured  party 
may  of  course  sue  either  separately.' 

§  313.  It  has  already  been  said  that  the  general  doctrine  of  the 
joint  and  several  nature  of  the  liability  springing  from  torts  does 
not  obtain  in  those  cases  where  the  injury  is  essentially  a  several 
one,  or  where,  in  other  words,  from  its  intrinsic  character  it  can 
only  be  committed  by  one  person.  The  most  important  of  this 
class  of  torts  is  slander.  No  joint  action  for  slander  is  possible  ; 
but  such  an  action  can  be  maintained  for  the  publication  of  a 
libel,  as  in  the  very  familiar  and  frequent  instance  of  a  news- 
paper, which  contains  defamatory  matter,  being  owned  and  pub- 
lished by  a  partnership.^  In  the  same  manner  a  joint  action  to 
recover  damages  for  a  malicious  prosecution,  which  is  an  injury 
to  character,  ma}^  beyond  doubt  be  brought  against  two  or  more 
persons  who  united  in  promoting  the  judicial  proceeding  com- 
plained of. 

§  314.  Although  in  cases  of  joint  torts  the  law  gives  the  in- 
jured party  a  wide  choice  to  sue  all  the  wrong-doers,  or  any 
number,  in  a  single  action,  or  to  sue  each  of  them  separately, 
thus  bringing  as  many  actions  as  there  are  persons,  yet  it  does  not 
permit  him  thereby  to  multiply  his  damages.  He  can  have  but 
one  satisfaction.  In  short,  he  can  collect  but  one  amount  of  dam- 
ages out  of  the  many  that  may  have  been  awarded  him  in  sepa- 
rate actions,  although  he  is  entitled  to  the  costs  in  each  suit.^  If 
he  has  prosecuted  two  or  more  jointly,  and  the  jury  has  assessed 
a  different  sum  as  damages  against  each  defendant,  the  plaintiff 
may  enter  the  judgment  against  all  for  either  of  these  amounts 
which  he  elects,  and  of  course  he  would  naturally  choose  the 
largest.     This  rule  is  based  upon  the  notion  that  the  injury  is  a 

1  Phelps  V.  Wait,  30  N.  Y.  78;  Wright  of  a  conspiracy  among  them.  This,  per- 
V.  Wilcox,    19   Wend.   343;    Montfort  v.     haps,  may  be  possible. 

Hughes,  3  E.  D.  Smith,  591,  594  ;  Suy-         ^  This  doctrine  is  not  confined  to  cases 

dam   I'.   Moore,  8  Barb.  358;  Hewett  v.  of  tort;  it  applies  in  all  instances  where 

Swift,   10   Am.  Law   Reg.   505.      When  there  have  been  separate  suits  or  recov- 

damage  is  caused  by  the  negligence  of  a  eries  against  persons  wlio  are  jointly  and 

servantof  a  firm,all  or  any  number  of  the  severally  liable  on  the  same  obligation; 

partners  may  be  sued.     Roberts  v.  John-  satisfaction   of  one  is  satisfaction  of  all, 

son,  58  N.  Y.  613,  616.  except   as  to  costs;  and  if  some  of  the 

2  Forsyth  v.  Edmiston,  2  Abb.  Pr.  430.  actions  are  pending,  payment  of  one  may 
Aqimre  is  suggested,  whether  an  action  be  pleaded  in  bar  of  such  pending  suits, 
for  slander  may  not  be  maintained  against  First  National  Bank  r.  Indianapolis,  &c. 
several  persons,  if  the  defamatory  words  Co.,  45  Ind.  5. 

are  uttered  in  pursuance  and  as  the  result 


362 


CIVIL   REMEDIES. 


unit,  that  one  award  of  damages  is  a  compensation  for  that 
injury,  and  that  the  defendants  are  equally  responsible  as  among 
themselves.  A  satisftiction  of  one  is  therefore  operative  as  to  all. 
Imprisonment  under  a  body  execution  is  regarded  by  the  law  as 
]->ro  taiito  a  satisfaction  ;  ^  and  if  one  such  judgment  debtor,  being 
in  imprisonment,  is  voluntarily  discharged  therefrom  by  the  cred- 
itor, the  judgment  or  judgments  against  all  the  others  are  ipso 
facto  satisfied,  even  though  rendered  in  separate  actions,  as  fully 
as  though  the  discharge  had  l)een  by  payment.^ 

§  315.  VII.  Actions — generally  founded  upon  statutes  —  in  the 
Settlement  of  Deceased  Pet-sons'  Estates.  In  many  if  not  all  States, 
actions  are  authorized  by  statute,  in  the  matter  of  settling  the 
estates  of  deceased  persons,  which  were  unknown  at  the  common 
law,  as,  for  example,  an  action  by  a  legatee  to  recover  his  legacy. 
It  is  not  within  my  purpose  to  inquire  when  such  actions  may  be 
brought,  but  simply  to  ascertain  what  special  rules,  if  any,  have 
been  laid  down  in  reference  to  the  proper  parties  therein.  A 
statute  of  New  York  requires  the  heirs  of  an  intestate  who  have 


1  Koenig  v.  Steckel,  58  N.  Y.  475. 

-  Kasson  v.  The  People,  44  Barb.  347. 
The  plaintiff  had  obtained  a  judgment 
against  G.  and  one  against  R.  in  a  separate 
action  against  each  for  a  joint  trespass.  G. 
was  taken  on  body  execution,  and,  while 
in  custody,  was  voluntarily  set  at  liberty 
by  the  judgment  creditor.  The  plaintiff 
afterwards  took  the  other  defendant,  R., 
on  a  body  execution  in  his  action.  R. 
applied  to  a  judge  by  Iiaheiis  corjms,  and 
was  discharged.  Tlie  General  Terra,  on 
appeal,  lield  this  discharge  regular,  and 
laid  down  the  doctrines  stated  in  the  text. 
See  also  McReady  v.  Rogers,  1  Xeb.  124; 
Turner  v.  Hitchcock,  20  Iowa,  310.  The 
latter  case  was  verj'  extraordinary.  The 
action  was  for  a  trespass,  and  was  against 
six  women  and  their  husbands ;  and  one 
Johnson  was  a  defendant.  The  petition 
alleged  that  a  party  of  women,  of  whom 
the  female  defendants  were  a  portion, 
made  a  raid  upon  the  plaintiff's  saloon, 
destroying  property  therein.  The  de- 
fendants, except  Johnson,  answered, 
among  other  defences,  that,  since  the 
action  was  brought,  the  plaintiff  had 
released  the  defendant  Johnson;  also 
that  one  Almira  C.  was  one  of  the  joint 
trespassers ;  and,  before  the  action  was 


brought,  the  plaintiff  and  she  had  inter- 
married, and  were  then  husband  and  wife. 
On  tlie  trial.it  was  proved  that  plaintiff 
had  released  Johnson,  but  that  she  had 
taken  no  part  in  the  trespasses,  and  was 
not  liable  therefor.  The  other  defence  was 
proved  exactly  as  alleged.  Upon  these 
facts,  the  court  held  that  the  release  of 
Johnson  did  not  discharge  the  other  de- 
fendants, because  she  was  not,  in  fact,  a 
joint  trespasser.  On  the  second  defence, 
Dillon  J.,  after  stating  the  common-law 
rules  concerning  joint  trespassers,  reached 
the  following  conclusions  :  That  the  code 
had  not  changed  these  former  rules ; 
that  separate  actions  may  be  brought, 
separate  verdicts  given,  and  judgments 
rendered,  but  only  one  satisfaction  ;  that 
the  release  of  one  joint  wrong-doer  dis- 
charges all ;  and,  finally,  tliat  the  marriage 
of  one  with  the  plaintiff  operated  as  a  re- 
lease and  discharge.  On  this  last  point 
the  court  were  equally  divided  ;  but  they 
were  agreed  upon  all  the  other  proposi- 
tions of  Judge  Dillon's  opinion.  Tlie  case, 
as  a  whole,  is  very  instructive,  and  con- 
tains a  full  discussion  of  the  doctrines 
concerning  joint  toits,  and  a  review  of  all 
the  leading  authorities. 


DEFENDANTS   IN   MISCELLANEOUS    CASES.  363 

inherited  lands  under  certain  specified  circumstances,  to  be  sued 
jointly  and  not  separately  for  a  debt  due  from  the  deceased,  the 
land  in  their  hands  being  regarded  as  a  fund  upon  which  the 
debt  is  chargeable  and  out  of  which  it  is  to  be  paid.  It  has  been 
held  that  this  statute  does  not  make  the  heirs  jointly  liable  as 
joint  debtors^  but  that  it  merely  prescribes  a  mode  of  enforcing 
the  demand  out  of  assets  which  have  descended  to  them.'  In  an 
action  by  a  residuary  legatee  against  the  executor  to  recover  the 
amount  claimed  to  have  been  given  by  the  will,  all  persons  inter- 
ested in  the  residue  must  be  joined  as  codefendants  with  the 
executor,  and  if  a  legacy  is  charged  upon  lands,  the  devisees  must 
also  be  made  parties.^  When  a  creditor  seeks  to  recover  his 
demand  against  the  estate,  his  suit  should  be  prosecuted  against 
the  executor  or  administrator  alone  ;  the  widow,  heirs,  legatees, 
next  of  kin,  and  creditors,  are  neither  necessary  nor  proper  par- 
ties defendant.  This  was  the  universal  rule  under  the  former 
system  ;  and  although  the  code  has  enacted  the  equitable  doc- 
trines concerning  parties,  and  has  made  no  exception  in  their 
application  to  different  actions,  it  has  not  changed  the  procedure 
in  this  particular.  The  administrator  or  executor  represents  the 
estate  ;  is  a  trustee  for  all  the  parties  who  are  interested  in  its 
distribution  ;  and  his  defence  is  their  defence.  He  is  bound  to 
interpose  all  necessary  and  available  answers  to  demands  made 
upon  the  estate,  and  the  law  presumes  that  he  will  faithfull}'  per- 
form this  duty.  The  general  language  of  the  codes  certainly 
does  not  require  a  greater  latitude  in  the  admission  of  parties 
defendant  who  are  interested  in  the  event  of  the  suit  than  was 
demanded  by  the  practice  of  the  equity  courts.  It  has  not  there- 
fore been  so  construed  as  to  make  the  widow,  heirs,  legatees,  and 
others  necessary  or  proper  defendants,  although  they  may  seem  to 
be  interested  in  the  result  of  the  controversy.^     The   same  is 

1  New   York   Laws  of  1837,   p.   537,  are  charged  upon  the  lands  of  the  de- 

§    73;    Kellogg  v.  Ohiisted,  6   How.  Pr.  ceased. 

487.  3  Nelson  v.  Hart,  8  Ind.  293,  295.    The 

'^  Tonnelle   v.    Hall,   3  Abb.  Pr.   205.  action  was  by  a  creditor  to  recover  a  debt 

Such  an  action,  although  it  may  be  au-  due  from  the  decedent.    He  had  made  not 

thorized  by  statute,  is  in  all  its  features  only  the  administrator  but  the  widow  and 

equitable ;    and    the   equity   rules   as   to  next  of  kin  defendants.     The  court  say  : 

parties  must  control  it.     See  Towner  v.  "  It  is  true,  a  judgment  for  the  plaintiff 

Tooley,  38  Barb.  598,  as  to  the  necessary  must  be  paid  out  of  property  which  would 

defendants  in  an  action  upon  an  adminis-  otherwise  go  to  the  widow  or  iieirs  ;  hence 

tration  bond  by  legatees  whose  legacies  they  would  seera  to  be  interested  in  the 


364  CIVIL   REMEDIES. 

true  even  when  the  testator  has  bequeathed  all  his  property,  real 
and  personal,  to  a  single  legatee  ;  the  creditor  must  pursue  his 
claim  against  the  executor  and  not  against  thelegatee.^  Although, 
in  general,  an  action  to  recover  a  debt  or  demand  due  to  the 
estate  must  be  brought  by  the  administrator  or  executor  alone, 
yet  in  some  exceptional  instances  such  suit  may  be  instituted 
and  prosecuted  by  a  legatee  or  distributee,  when  the  adminis- 
trator or  executor  is  incapacitated  from  suing.^ 

§  316.  VIII.  8o7ne  Special  Actions  not  included  in  either  of  the 
foregoinc)  clasms.  In  New  York,  an  action  against  a  county 
should  be  brought  against  "  The  Board  of  Supervisors  "  of  the 
specified  county,  and  not  against  the  supervisors  individually  or 
by  name.^  A  suit  may  be  maintained  between  two  firms  having 
a  common  partner,  he  being  made  a  defendant,  and  suitable  aver- 
ments being  inserted  in  the  complaint  or  petition.^  Where  a 
particular  religious  society  or  individual  church  is  incorporated, 
an  action  to  recover  a  debt  or  damages  for  the  breach  of  a  con- 
tract due  from  it  must  be  brought  against  this  corporation,  and 
not  against  the  bishop  or  priest,  whatever  may  be  the  ecclesi- 
astical powers  and  authority  of  such  clerical  officers.^  In  certain 
States  the  assignor  of  a  non-negotiable  thing  in  action,  or  where 


result  of  the  controversy.     But  the  sub-         '  Perry  v.  Seitz,   2  Duv.  (Ky.)   122. 

ject-niatter  of  this  suit  is  simply  a  claim  The  creditor   sued   the  widow,  alleging 

against  the  decedent's   estate  ;    and   tiie  that  the  deceased  had  given  to  her  all  his 

administrator  who  represents  their  inter-  property,  and  praying  judgment  to  be  en- 

est  in  the  estate  is  in  duty  bound  to  make  forced    against  the  assets  in  her  hands, 

all  necessary  defences  against  the  claim-  Tlie  action  was  held  improper.     Such  an 

ant's  demand.     His  defence  is  tiieir  de-  action  would  be  permitted  by  the  statutes 

fence.     We  are  not  inclined  to  adopt  such  of  some  States  if  the  e.Kecutor  had  settled 

a  construction  as  will  allow  each  creditor  the  estate,  and  the  claim  had  not  been  pre- 

of  an   estate,  in   tlie   prosecution  of  his  sented  to  him  within  the  period  prescribed 

claim  againgt  its  administrator,  to  join  as  hy  law. 

defendants  the  widow  and  heirs."     See         ^  See  Fisher  v.  Hubbell,  1  N.  Y.  Sup. 

also    Stanford    v.    Stanford,  42   Ind.  485,  Ct.  97  ;  s.  c.  65  Barb.  74  ;  7  Lans.  481 ; 

488,  489.     In  an  action  against  the  sure-  Lancaster  v.  Gould,  46  Ind.  397. 
ties  on  an  administrator's  bond,  he  himself         ^  Hill  v.  Board  of  Supervisors,  12  N.  Y. 

being  dead,  hin  administrator  is  not  a  nee-  52. 

essary  defendant,  and  the  next  of  kin  of         *  Cole  ;•.  Reynolds,  18  N.  Y.  74 ;  En- 
the  original  decedent  are  not  proper  de-  glis  v.  Furniss,  4  E.  D.  Smith,  587. 
fendants.     Flack  v.  Dawson,  09  N.  C.  42.  *  Charboneau     v.    Henni,     24    Wise. 
If  one  of  two  executors  dies,  and  an  action  2.50.     A  peculiar  case.     The  action  was 
is  brought  against  //('«  personal  represen-  against  a  Roman  Catholic  bishop,  to  re- 
lative to  recover  a  demand  against  the  cover  tlie  cost  of  building  a  church  edifice 
original   estate,    the    surviving    executor  belonging  to  a  religious  society. 
must  be  made  a  codefendant.     McDowell 
V.  Clark,  68  N.  C.  118,  120, 


DEFENDANTS   IN   MISCELLANEOUS    CASES.  365 

the  assignment  is  not  expressly  authorized  by  statute,  is  a  neces- 
sary defendant  in  an  action  brought  by  the  assignee.^ 

§  317.  In  the  case  of  a  substitution  of  one  party  for  another  as 
a  debtor,  —  that  is,  when  a  debt  being  due  from  one  person, 
another  for  a  valuable  consideration  assumes  such  indebtedness 
and  promises  to  pay  the  same,  —  it  has  been  decided  in  Indiana 
that  the  creditor  may  maintain  an  action  against  the  substituted 
debtor,  but  must  join  with  him  the  original  debtor  as  a  code- 
fendant,  under  tlie  general  provision  of  the  code  requiring  or 
permitting  all  persons  to  be  made  defendants  who  are  necessary 
parties  to  a  complete  determination  and  settlement  of  the  ques- 
tions involved.^  In  this  decision  the  court  has  accepted  to  its 
full  extent  the  equitable  theory  of  parties,  and  has  applied  it 
unreservedly  to  a  purely  legal  action ;  for  since  the  creditor  had 
surrendered  all  claim  upon  the  original  debtor,  he  could  recover  no 
judgment  in  the  action  against  such  debtor,  and  the  latter's  pres- 
ence could  only  be  necessary  for  his  own  protection  and  that  of 
the  other  defendant.  It  is  probable  that  this  ruling  would  not  be 
followed  by  those  courts  which  have  partially  or  wholly  confined 
the  operation  of  the  statutory  provisions  in  question  to  equitable 
actions.  When  the  stockholders  of  a  corporation  are  by  statute 
made  personally  responsible  for  an  amount  equal  to  the  amount 
of  stock  held  by  them,  the  liability  is  not  joint,  and  each  must  be 
sued  separately."^ 

1  Harvey  v.  Wilson,  44  Ind.  231,  234;  v.  Downing,  34  Ind.  800.     This  rule  haa 

Allen    V.  Jerauld,  31  Ind.  372;    Indiana,  been   e.xtended   to  cases   not    expressly 

&c.  R.  It.  i;.  McKernan,  24  Ind.  62;  Hold-  within    its  terms.     Thus,  where   a   firm 

ridge  v.  Sweet,   23  Ind.   118;  French  v.  G.  &  Co.  were  indebted  to  the  plaintiflE 

Turner,  15  Ind.  59  ;   Gower  v.  Howe,  20  on  certain  notes,  and  one  D.  made  a  con- 

Ind.  396.     Wlien  a  negotiable  promissory  tract  in  writing  with  the  firm  by  which 

note  is  indorsed  and  transferred,  it  carries  he  agreed  in  general  terms  to  assume  and 

with  it  the  title  to  a  mortgage  given  as  pay  r/// their  debts,  and  the  plaintiff  rely- 

security,  so  that  the  assignor  —  the  mort-  ing  on  this  contract  sued  D.  to  recover  the 

gagee — is  not  a  necessary  defendant  in  a  amount  of  such  notes,  it  was  held,  upon 

foreclosure   suit.     Bondurant  v.   Bladen,  D.'s  objection,  that  the  members  of  the 

19  Ind.  160;  Nelson  v.  Johnson,  18  Ind.  firm  were  necessary  defendants  to  protect 

329;    Hubbell    v.    Skiles,   16   Ind.   138;  D.'s  interests.     Durham   v.  Biscliof,   47 

Hopkins  v.  Organ,  15  Ind.  188;  Terry  v.  Ind.  211 ;  S.  P.  Hardy  v.  Blazer,  29  Ind. 

Seitz,  2  Duv.  (Ky.)  122;  Lytle  v.  Lytle,  226. 

2   Mete.    (Ky.)    127;    Gill   v.    Johnson's  '^  Hardy  i;.  Blazer,  29  Ind.  226. 

Administrators,  1  Mete.  (Ky.)  649.     See  s  Pgrry  v.  Turner,  65  Mo.  418. 
Shane  v.  Lowry,  48  Ind.  205,  206  ;  Strong 


366  CIVIL   REMEDIES. 

SECOND.  ACTIONS  AGAINST  HUSBAND  AND  WIFE  OR  EITHER  OP 
THEM:  PARTIES  DEFENDANT  AS  AFFECTED  BY  THE  MARRIAGE 
RELATION. 

§  318.  The  provisions  of  the  codes,  and  of  other  statutes,  in 
relation  to  actions  in  which  married  women  are  parties,  were 
quoted  in  fall  in  the  last  preceding  section,  and  need  not  be 
repeated  here.^  There  is  a  marked  difference  in  the  extent  of 
the  alterations  made  in  the  former  law  by  the  legislation  of  the 
various  States.  The  changes  in  New  York  are  the  most  complete 
and  radical,  the  wife  being  in  almost  every  respect  assimilated  to 
the  unmarried  woman.  The  example  of  New  York  is  followed 
by  a  few  States.  In  most  of  them,  however,  the  modifications 
do  not  go  to  any  such  extent,  and  are  confined  to  the  cases  in 
which  married  women  are  sued  or  sue  in  respect  of  their  separate 
property,  and  those  in  which  the  action  is  directly  between  the 
husband  and  wife,  leaving  all  others  to  be  controlled  by  the  prior 
law.  We  saw  in  the  preceding  section  that  in  most  of  the  States 
where  a  right  of  action  exists  on  account  of  a  tort  committed  to 
the  person  of  a  married  woman,  the  common-law  rules  are  un- 
changed, and  the  action  must  be  either  in  the  name  of  the  hus- 
band alone,  or  of  the  husband  and  wife  jointly ;  while  in  New 
York,  and  in  the  few  States  which  have  copied  its  legislation,  the 
wife  is  permitted  to  sue  in  her  own  name  in  respect  of  any  cause 
of  action  accruing  to  herself.  There  is  even  less  modification  of 
the  ancient  doctrines  which  regulate  the  form  of  suits  against 
the  wife  for  her  torts,  frauds,  and  other  wrongful  acts.  The 
legislation  of  New  York,  and  I  believe  of  every  other  State,  is 
silent  upon  this  particular  subject,  and  the  matter  is  thus  left 
entirely  as  it  existed  at  the  common  law. 

§  319.  The  result  is  that  in  actions  which  concern  her  separate 
property,  the  wife  may  or  must  be  sued  alone,  either  with  or 
without  a  next  friend.  In  those  States  which  permit  her  to  enter 
into  contracts  having  reference  to  her  separate  property,  or  con- 
nected with  a  business  or  trade  which  she  may  carry  on,  suits 
upon  such  contracts  may  or  must  be  brought  against  her  individ- 
ually ;  while  actions  to  recover  damages  for  personal  torts  com- 
mitted by  her  must  be  instituted  against  her  and  her  husband 

1  See  supra,  §  236,  wliere  the  stat-  plaintiffs  and  of  defendants  will  be  found 
Utory  provisions  embracing  the  cases  of    in  full. 


ACTIONS   AGAINST    HUSBAND    AND    WIFE. 


36T 


jointly,  or  in  certain  exceptional  cases  solely  against  the  husband. 
These  propositions,  which  are  the  general  summing  up  of  the 
statutory  provisions,  and  of  the  judicial  interpretation  thereof,  I 
shall  now  illustrate  by  particular  instances  which  will  embrace 
all  the  important  questions  that  arise. 

§  320.  It  is  the  settled  rule  in  all  the  States  which  have  adopted 
the  reformed  system  of  procedure,  that,  in  actions  to  recover 
damages  for  all  torts  whether  with  or  without  violence,  negli- 
gences, frauds,  deceits,  and  other  such  wrongs  done  by  the  wife 
personally,  and  not  dorte  merely  by  or  by  the  use  of  her  separate 
property,  the  common-law  principle  is  unaltered,  and  the  husband 
and  wife  must  be  joined  as  codefendants.^     The  principle  thus 


1  Anderson  v.  Hill,  53  Barb.  288,  as- 
sault and  battery  by  the  wife  ;  Peak  v. 
Lemon,  1  Lans.  295,  conversion;  Tait  v. 
Culbertson,  57  Barb.  9,  libel  by  the  wife  ; 
Kowing  V.  Manly,  57  Barb.  479,  483  ;  s.  c. 
49  N.  Y.  192,  198,  fraud  and  forgery  by 
the  wife;  Brazil  v.  Moran,  8  Minn.  236, 
assault  and  battery  by  the  wife ;  Ball  v. 
Bennett,  21  Ind.  427,  action  for  setting 
fire  to  plaintiffs'  mill  by  the  wife;  Tur- 
ner V.  Hitchcock,  20  Iowa,  310,  trespass 
on  plaintiflTs  premises  and  destroying  per- 
sonal property  thereon  ;  Musselman  v. 
Galligher,  32  Iowa,  383;  McElfresh  v. 
Kirkendall,  36  Iowa,  224  ;  Luse  v.  Oaks, 
36  Iowa,  562,  slander  by  the  wife  ;  Curd 
V.  Dodds,  6  Bush  (Ky.),  681,  agtion  for 
fraud  of  wife  in  selling  certain  property 
of  hers.  Held,  that  she  was  not  liable  for 
a  fraud  in  entering  into  a  contract,  the 
law  of  Kentucky  not  permitting  lier  to 
make  a  binding  contract ;  the  doctrine  of 
the  text  is  fully  recognized  in  tiie  opinion. 
Coolidge  V.  Parris,  8  Ohio  St.  594,  assault 
and  battery  by  the  wife.  The  court  held 
that  a  clause  of  the  Ohio  code  —  and  the 
same  is  found  in  several  other  of  the 
Western  States — as  follows,  —  "If  the 
husband  and  wife  are  sued  together,  the 
wife  may  defend  for  her  oicn  rujht,  and  if 
the  husband  neglect  to  defend,  she  may 
defend  for  his  right  also,"  —  applies  to 
equity  cases  where  separate  rights  of  the 
wife  are  involved  and  passed  upon,  and 
does  not  apply  to  such  a  common-law 
action  as  the  one  then  before  the  court, 
against  the  husband  and  wife,  and  that 
the  husband  had  complete  control  over 


such  an  action.  In  Kowing  v.  Manly,  49 
N.  Y.,  Rapallo  J.  discusses  the  subject  in 
a  very  learned  and  exhaustive  manner, 
and  from  his  opinion  I  make  some  ex- 
tracts (p.  198).  "  Tlie  husband  is  at 
common  law  liable  to  be  sued  jointly  with 
his  wife  for  all  torts  committed  by  her 
prior  to  or  during  the  coverture,  and 
hence,  where  she  has  wrongfully  taken 
and  converted  personal  property  of  an- 
otlier,  the  action  must  be  against  both 
husband  and  wife,  though  he  be  in  fact 
innocent  of  any  wrong,  and  never  received 
any  part  of  the  property.  The  liability 
of  tlie  husband  in  such  a  case  does  not 
rest  upon  the  ground  that  he  is  in  con- 
templation of  the  law  guilty  of  the  taking 
or  conversion,  but  results  from  the  inca- 
pacity of  the  wife  to  be  sued  without  her 
husband.  Capell  v.  Powell,  17  C.  B.  n.  s. 
743,  748."  Mr.  Justice  Rapallo  goes  on  to 
discuss  at  considerable  length  the  case 
where  the  taking  and  conversion  is  by 
both  husband  and  wife  jointly,  when  the 
conversion  is  regarded  in  law  as  for  his  use 
alone,  and  the  action  miglit  be  brought 
solely  against  him,  but  may  also  be 
brought  against  both  because  both  are 
concerned  in  the  trespass.  He  concludes 
as  follows  (p.  201)  :  "  He  is  not  joined  as 
defendant  [in  an  action  brought  for  her 
individual  tort]  on  the  ground  tliat  her 
guilt  .is  imputed  to  him,  but  because  so 
long  as  the  marital  relation  continues  the 
wife  is  incapable  of  being  sued  alone,  and 
his  liability  continues  only  so  long  as  the 
relation  of  marriage  subsists.  If  after  the 
commission  of  a  tort  by  a  married  woman, 


368 


CIVIL   REMEDIES. 


stated  assumes  that  the  wife  acted  voluntarily.  If,  however,  the 
tort  is  committed  b}'  the  wife  in  the  presence  and  under  the  com- 
pulsion or  direction  of  her  husband,  he  alone  is  liable,  and  should 
be  sued  without  making  her  a  codefendant.  In  applying  the 
latter  rule,  it  is  settled  that  if  the  tort  is  done  by  the  wife  in  the 
presence  of  her  husband^  a  prima  facie  presumption  is  raised  that 
it  was  done  by  his  direction  and  under  his  compulsion.  This 
presumption  may  be  overcome,  and  if  it  be  shown  that  she  acted 
voluntarily,  although  in  his  presence,  she  must  be  made  a  defend- 
ant. Tliese  common-law  rules  have  not  been  in  any  respect 
changed  by  the  codes.^ 

§  321.  If,  however,  the  tort  is  not  committed  by  the  wife  per- 
sonally, but  is  done  by  means  of  her  separate  property,  or  in  the 
use  thereof,  or  under  color  or  claim  of  ownership  of  her  separate 
property,  the  action  should  be  brought  against  her  individually, 
without  joining  the  husband  as  a  codefendant,  in  all  those  States 
whose  statutes  permit  a  married  woman  to  be  sued  alone  in 
respect  of  all  matters  which  concern  her  separate  estate.^     In 


she  sliould  be  divorced,  or  tlie  husband 
should  die,  tiie  action  could  be  brought 
against  her  alone,  and  if  the  death  of  the 
husband  occurred  pending  an  action 
against  botii,  it  would  survive  against  the 
wife.  But  if  she  should  die  before  or 
pending  the  action,  it  would  not  survive 
against  the  husband.  This  could  not  be 
if  her  wrong  were  imputed  to  him,  or  he 
were  in  law  unqualifiedly  responsible  for 
it." 

'  Brazil  v.  Moran,  8  Minn.  2.36;  Ball 
I'.  Bennett,  21  Ind.  427  ;  Curd  v.  Dodds, 
6  Bush  (Ky.),  681,  685;  Cassin  v.  Dela- 
ney,  38  N.  Y.  178,  per  Hunt  C.  J.  "  An 
offence  by  his  direction,  but  not  in  his 
presence,  docs  not  exempt  her  from  lia- 
bility ;  nor  does  his  presence,  if  unaccom- 
panied by  his  direction.  The  presence 
furnishes  evidence  and  affords  a  presump- 
tion of  his  direction,  but  it  is  not  conclu- 
sive, and  the  truth  may  be  establislied 
by  competent  evidence."  Flanagan  v. 
Tinen,  58  Barb.  587.  The  rule  is  settled 
in  Missouri,  that  if  husband  and  wife 
both  unite  in  committing  a  tort,  as,  for 
example,  an  assault  and  battery,  a  joint 
action  against  them  will  not  lie,  but  the 
husband  alone  must  be  sued.  Dailey  v. 
Houston,  68  Mo.  361,  366,  367  ;  Meegan 


V.  Gunsollis,  19  Mo.  417.  But  in  an  action 
against  husband  and  wife  for  their  joint 
fraud,  it  was  held  in  New  York  that  she 
would  not  be  liable  unless  she  actively 
participated  in  the  wrong.  Vanneman 
V.  Powers,  66  N.  Y.  39,  41. 

■''  Peak  V.  Lemon,  1  Lans.  295.  An 
action  against  a  husband  and  wife  for  an 
alleged  conversion  of  chattels  by  the 
wife.  The  act  was  done  by  her  alone, 
under  a  claim  of  ownership  of  the  chattel, 
but  in  fact  her  claim  was  not  well  founded, 
and  the  act  was  a  wrongful  conversion. 
The  wife  alone  was  held  liable  because 
the  act  was  done  under  color  of  a  claim 
of  her  ownership  of  the  chattels  as  her 
separate  property.  Eagle  v.  Swayze,  2 
Daly,  140.  An  action  to  recover  dam- 
ages caused  by  the  fall  of  a  chimney  of  a 
house  owned  by  a  married  woman,  the 
fall  being  caused  by  the  negligent  con- 
struction of  the  house,  the  wife  alone 
was  held  liable  and  the  action  properly 
brought  against  her.  Rowe  v.  Smith, 
38  How.  Pr.  37  ;  s.  c.  on  appeal,  46  N.  Y. 
230.  A  married  woman  owned  a  farm 
with  horses,  cattle,  &c.,  upon  it.  These 
animals  strayed  upon  the  plaintiff's  land, 
and  did  damage.  The  action  was  held 
properly  brought  against  her  alone,  as  the 


ACTIONS    AGAINST    HUSBAND    AND    WIFE.  369 

other  words,  actions  which  concern  or  have  relation  to  her 
separate  property  are  not  confined  to  those  upon  contract  or 
those  involving  the  ownership  of  the  property,  but  extend  to 
suits  based  upon  torts  and  wrongs  done  by  means  or  in  the  use 
of  or  claim  to  the  property. 

§  322.  Under  the  statutes  of  New  York,  a  married  woman  may 
be  sued  alone  upon  any  contract  which  she  has  made  in  a  trade 
or  business  carried  on  by  herself,  or  in  her  name  by  her  agent, 
and  the  complaint  should  be  in  the  ordinary  form  as  though  the 
action  was  brought  against  an  unmarried  woman. ^  She  must  also 
be  sued  in  the  same  manner  upon  any  contract  made  in  relation 
to,  or  upon  any  liability  growing  out  of  her  separate  property. 
Finally,  if  she  enters  into  any  contract  and  therein  charges  the 
payment  thereof  upon  her  separate  jjroperty,  she  is  in  like  manner 
personally  liable,  and  must  be  sued  without  making  her  husband  a 
codefendant.  The  charge  thus  made  does  not  create  an  equi- 
table lien  upon  any  particular  property,  nor  even  a  general  lien  to 
be  enforced  by  an  equitable  action.  It  simply  creates  a  personal 
liability  upon  herself,  to  be  enforced  in  an  ordinary  legal  action, 
and  by  the  recovery  of  any  ordinary  judgment  for  debt  or  dam- 
ages. Such  charge  may  even  be  verbal,  and  when  made  creates 
a  personal  liability  which  may  be  enforced  against  any  property 
which  she  may  have  at  the  time,  or  any  which  she  may  after- 
wards acquire.     In  all  these  cases,  it  is  not  necessary  to  allege  in 

injury  was  caused  solely  by  her  separate  Tlie  fact  tliat  lier  liusbaiul  acted  as  lier 

property.    Bauin  v.  Mullen,  47  N.  Y.  577.  agent  in  tlie  sale  did  not  affect  lier  liabil- 

Action  against  a  married  woman  alone  to  ity,  for  he  may  be  her  agent  the  same  as 

recover  damages  for  fraud  in  the  sale  of  any  other  person.    She  is  liable  for  frauds 

land  which  she  owned,  the  husband  act-  committed  by  her  husband  as  her  agent 

ing  as  her  agent  in  the  sale  and  making  in  carrying  on  a  business  for  her.    Warner 

the  fraudident  representations.    The  New  v.  Warren,  46  N.  Y.  228. 
York  Court  of  Appeals  held  that  the  hus-  i  Hier  v.  Staples,  51  N.  Y.  136.     She 

band  was  not  a  proper  party  defendant,  has  not  the  full  power  to  contract;  the 

Church  C.  J.,  after  citing  the  statutes  of  contract   must  either  be  made  in  some 

1860,    1862,    that   "  the   married    woman  trade  or  business  which  she  carries  on,  or 

may  sue  and  be  sued  alone  in  all  matters  be  for  her  personal  services,  or  have  a 

having  relation  to  her  sole  and  separate  connection  witli    her   separate  property, 

property,  tlie  same  as  if  she  were  sole,"  See  the   following  cases :    Manchester  v. 

added  that  the  common-law  rule  as  to  her  Sahler,  47  Barb.  155 ;    Smith  v.  Allen,  1 

personal  torts  had  not  been  changed;  "  but  Lan?.  101;  Hart  v.  Young,  1  Lans.  417; 

when   such   torts   are   committed  in  the  Lennox  v.  Eldred,  1  N.  Y.  Sup.  Ct.  140 ; 

management  and  control  of  her  separate  Shorter  v.  Nelson,  4  Lans.  114;  Hallock 

property,  the  rule  is  changed,  and  she  is  v.  DeMunn,  2  N.  Y.  Sup.  Ct.  350 ;  Bodine 

liable  the  same  as  if  she  were  unmarried,  v.  Killeen,  53  N.  Y.93  ;  Adams  v.  Honness, 

and  can  be  sued  in  the  same  manner."  62  Barb.  326. 

24 


370 


CIVIL   REMEDIES. 


the  complaint  the  special  facts  from  which  such  liahilit}^  arises ; 
the  comi^laint  should  be  in  the  ordinary  form,  and  all  the  special 
facts  relating  to  her  coverture  should  be  averred  in  the  answer.^ 
§  323.  It  is  held,  however,  in  several  States,  that  in  pursuance 
of  the  express  language  of  their  statutes,  the  husband  is  a 
necessary  party  defendant,  even  in  all  actions  against  the  wife 
"which  concern  her  separate  property.  This  construction  is  not 
based  upon  any  interest  which  he  has  in  the  subject-matter  of  the 
controversy,  but  upon  the  peremptory  terms  of  the  statutory  pro- 
visions which  require  such  joinder.^ 


1  These  propositions  are  the  final  re- 
sults at  which  the  New  York  courts  have 
arrived  through  a  long  and  progressive 
series  of  decisions.  Maxon  v.  Scott,  55 
N.  Y.  247  ;  Hier  v.  Staples,  51  N.  Y.  136 ; 
Hinckley  v.  Sniitii,  51  N.  Y.  21 ;  Frecking 
V.  EoUand,  53  N.  Y.  422,  42G.  "A  gen- 
eral complaint  in  an  action  against  a  mar- 
ried woman  is  proper.  Tlie  law  makes 
her  liable  as  a  feme  sole  if  the  contract 
was  made  in  her  separate  business  or  in 
relation  to  her  separate  estate.  If  the 
contract  sued  upon  is  not  one  she  is  au- 
thorized to  make,  the  objection  should  be 
taken  by  answer  and  raised  upon  the 
trial."  Foster  v.  Conger,  61  Barb.  145, 
147  ;  Ainsley  v.  Mead,  3  Lans.  116  ;  Per- 
kins i\  Perkins,  62  Barb.  531.  If  a  wife, 
having  property,  and  living  with  her  hus- 
band and  family,  buy  goods,  groceries, 
and  the  like,  for  the  use  of  the  family, 
and  promises  to  pay  tiieir  price,  but  does 
not  expressly  charge  the  payment  upon 
her  property,  neither  she  nor  iier  prop- 
erty is  liable.  Baken  v.  Harder,  6  N.  Y. 
Sup.  Ct.  440;  Weir  v.  Groat,  6  N.  Y. 
Sup.  Ct.  444.  A  married  woman  who  has 
a  separate  estate,  and  employs  a  lawyer 
to  render  services  beneficial  to  it,  thereby 
charges  her  property  with  the  payment  of 
his  conii)ensation,  altliough  there  was  no 
express  agreement  to  charge.  Blanke  v. 
Bryant,  55  N.  Y.  649.  Where  a  wife  had  ex- 
ecuted a  note  which  expressly  charged  her 
separate  property,  and  recited  Uiat  tlie  con- 
sideration was  tor  the  benefit  of  her  said 
property,  but  in  fact  these  recitals  were 
entirely  false,  and  the  note  was  obtained 
from  her  by  duress,  and  was  used  solely 
for  the  benefit  of  her  husband,  it  was  held, 
in  New  York,  that  no  action  could  be  sus- 


tained upon  it  even  by  a  bona  Jide  holder ; 
the  court  took  the  broad  ground  that  such 
notes  are  not  commercial  paper,  and  are 
not  governed  by  the  rules  of  tlie  law-mer- 
chant. Loomis  V.  Ruck,  56  N.  Y.  462. 
For  additional  cases,  illustrating  the  New 
York  rule  in  reference  to  the  wife's  con- 
tracts made  in  connection  with  her  prop- 
erty, see  Corn  Ex.  Ins.  Co.  v.  Babcock, 
42  N.  Y.  613;  Yale  v.  Dederer,  18  N.  Y. 
265  ;  22  N.  Y.  450,  which  is  superseded  by 
subsequent  decisions  ;  Owen  v.  Cawlej', 
36  N.  Y.  600  ;  Carpenter  v.  O' Dougherty, 
50  N.  Y.  660 ;  Garretson  v.  Seaman,  54 
N.  Y.  652 ;  Newell  i'.  Roberts,  54  N.  Y. 
677;  Fowler  v.  Seaman,  40  N.  Y.  592; 
Quassaic  Bank  v.  Waddell,  3  N.  Y.  Sup. 
Ct.  680  ;  Miller  v.  Hunt,  3  N.  Y.  Sup.  Ct. 
762  ;  Kelty  v.  Long,  4  N.  Y.  Sup.  Ct.  163  ; 
Bogert  V.  Gulick,  65  Barb.  322 ;  Warner  v. 
Warren,  46  N.  Y.  228 ;  Maniiattan  B.  & 
M.  Co.  V.  Thompson,  58  N.  Y.  80.  Con- 
tracts between  the  wife  and  husband. 
Slie  may  become  his  creditor,  and  main- 
tain an  action  to  recover  the  debt.  AVood- 
worth  V.  Sweet,  44  Barb.  268 ;  51  N.  Y.  8 ; 
McCartney  v.  Welch,  44  Barb.  271 ;  Sav- 
age V.  O'Neil.  44  N.  Y.  298;  Jaycox  v. 
Caldwell,  51  N.  Y.  395.  If  the  Imsband 
gives  a  note  to  his  wife  during  the  mar- 
riage, no  action  can  be  maintained  on  it 
by  her  against  him  or  his  representatives 
after  his  death,  simply  because  there  is 
no  consideration;  Whitaker  v.  Whitaker, 
52  N.  Y.  368 ;  but  if  there  is  a  consid- 
eration for  the  note,  or  if  it  is  given  by 
him  in  contemplation  of  marriage,  she 
can  enforce  it  by  suit.  Wright ;-.  Wright, 
54  N.  Y.  437;  Banfield  r.  Kumsey,  4 
N.  Y.  Sup.  Ct.  322. 

^  Oatmau  v.  Goodrich,  15  Wise.  589. 


ACTIONS    AGAINST    HUSBAND    AND    WIFE. 


371 


§  324.  The  rule  which  prevails  in  Indiana,  in  reference  to  the 
personal  liability  of  a  married  woman  upon  her  contracts,  has 
been  recently  settled  by  a  series  of  very  able  and  well-considered 
decisions.  Her  common-law  disability  to  enter  into  contracts 
generally  still  remains  in  that  State.  She  can  only  create  an 
equitable  liability  of  her  separate  property,  resulting  from  some- 
thing which  operates  as  a  specific  charge  upon  it ;  and  this  charge 
can  only  be  produced  b}^  an  expressed  intention,  on  the  part  of  the 


The  action  concerned  tlie  wife's  separate 
property,  and  she  was  made  a  defendant 
without  her  husband.  Dixon  C.  J.  said 
(p.  593),  after  stating  the  common-law 
rules,  and  the  statutes  which  take  away 
all  the  husband's  interest  in  the  wife's 
property:  "The  statute  —  R.  S.  ch.  122, 
§  15  —  reads  as  follows  :  '  When  a  married 
woman  is  a  party,  her  husband  must  be 
joined  except  that,  1.  when  the  action 
concerns  her  separate  property,  she  may 
sue  alone  ;  2.  when  the  action  is  between 
herself  and  her  husband,  she  may  sue  or 
be  sued  alone.'  This  language  is  plain 
and  unambiguous,  and  the  case  is  not 
within  the  exceptions.  The  husband 
must  therefore  be  joined.  It  is  idle  in 
such  cases  to  look  for  the  reason  of  the 
law,  or  to  some  other  statute  founded 
upon  more  rational  principles  for  an  ex- 
cuse to  evade  the  act  in  question."  To 
the  same  effect  are  Owsley  v.  Case,  16 
Wise.  600;  Wolf  v.  Banning,  3  Minn. 
202,  204,  perFlandreau  J.  "  There  is  but 
one  instance  in  which  a  married  woman 
can  appear  without  either  her  husband  or 
lier  next  friend,  and  that  is  when  the 
action  is  between  herself  and  her  hus- 
band. Wlien  she  is  plaintiff  in  an  action 
concerning  her  separate  proi)erty,  it  is 
optional  with  her  whether  or  not  she  will 
join  her  husband  —  she  may  sue  alone." 
The  statute  is  the  same  as  in  Wisconsin, 
except  that  it  requires  tiie  wife  to  appear 
by  a  next  friend.  This  opinion  is  e.x- 
haustive  and  valuable.  See  also  Mav- 
rich  V.  Grier,  8  Nev.  52.  In  loiva,  a  wife 
may  be  sued  alone  upon  her  contracts 
made  in  relation  to  her  separate  property. 
Mitchell  V.  Smith,  32  Iowa,  484,  487.  If 
she  has  separate  property,  she  may  bind 
it  by  an  ordinary  bond  and  mortgage, 
executed  for  any  purpose.  First  Nat. 
Bank  of  Ft.  Dodge  v.  Haire,  36  Iowa, 


443 ;  Patton  v.  Kinsman,  17  Iowa,  428. 
Where  a  husband,  with  his  wife's  knowl- 
edge and  consent,  purchased  materials  on 
credit,  to  be  used  in  improving  her  sep- 
arate property,  and  they  were  so  used 
with  her  consent,  she  being  fully  aware 
that  they  were  not  paid  for,  her  separate 
estate  became  cliargeable  for  the  price. 
Miller  v.  Hollingsworth,  36  Iowa,  163.  In 
California,  a  married  woman  cannot  bind 
herself  by  contract  general Ij-,  so  that  a 
personal  judgment  can  be  obtained  against 
her.  Under  a  statute  passed  in  18.50, 
she  could  create  an  equitable  charge 
upon  her  separate  estate,  real  or  personal, 
only  by  means  of  a  writing  executed  in 
the  manner  therein  prescribed.  Maclay 
V.  Love,  25  Cal.  367 ;  Love  v.  Wat  kins, 
40  Cal.  547,  558.  In  1862,  this  statute  was 
amended  and  confined  to  her  sejiarate 
real  estate,  so  that  she  may  charge  her 
separate  personal  estate  by  means  of  any 
contract,  which,  according  to  the  doctrines 
of  equity,  creates  an  equitable  lien  upon 
it.  Terry  v.  Hammonds,  47  Cal.  32.  In 
Missouri,  if  a  married  woman  has  a  sep- 
arate property  for  lier  sole  use,  and  exe- 
cutes a  promissory  note  or  any  other 
promise  to  pay  money,  it  will  be  pre- 
sumed that  she  intended  thereby  to  charge 
the  separate  estate  with  its  payment ;  and 
it  makes  no  difference  what  may  be  the 
form  of  the  promise.  De  Baun  v.  Van 
Wagoner,  56  Mo.  347,  349.  In  Ohio,  it 
seems,  a  married  uoman  can  enter  into  no 
contracts  not  connected  with  or  relating 
to  her  separate  property.  Swasey  v.  An- 
tram,  24  Ohio  St.  87.  The  ordinary 
equity  doctrine,  as  to  the  wife  charging 
her  separate  estate,  prevails  in  Nebraska, 
McCormick  v.  Lawton,  3  Neb.  449  ;  and 
in  Oregon,  Kennard  v.  Sax,  3  Oregon, 
263,  267. 


372 


CIVIL    REMEDIES. 


married  woman,  to  impose  such  a  lien.  The  wife  must  therefore, 
by  her  contract,  intend  to  charge  her  separate  property,  and  the 
complaint  must  allege  such  an  intent.  A  contract  entered  into 
by  her  upon  the  credit  of  her  property  is  not  sufficient  to  sustain 
the  equitable  action  to  reach  her  property.  It  follows,  therefore, 
that  the  contract  must  be  special  in  its  form,  and  must  expressly 
state  her  intention  to  charge  the  payment  thereof  upon  her  estate. 
It  can  then  be  enforced,  not  by  a  personal  action  and  pecuniary 
judgment  against  her,  but  by  a  purely  equitable  suit  and  a  judg- 
ment in  rem  against  the  property.^ 

§  325.  Under  the  statutes  of  many  States  respecting  home- 
steads, it  is  the  established  rule  that  the  wife  has  such  a  vested 
mterest  in  the  homestead,  that  she  is  always  a  proper,  and,  gen- 
erally, a  necessary  party  defendant  with  her  husband  in  all  actions 
which  may  affect  the  title  thereto,  or  the  right  to  the  possession 
thereof.     At  all  events,  her  interest  will  not  be  cut  off  unless  she 


1  Kantrowitz  v.  Prather,  31  Ind.  92. 
An  action  against  a  married  wo  nianf'or 
goods  sold  and  delivered.  The  complaint 
alleged  that  she  had  a  separate  property, 
and  that  the  goods  were  sold  and  tlie 
credit  given  her  upon  the  faitli  of  her 
said  property,  and  prayed  a  judgment 
that  the  amount  recovered  might  be  made 
a  charge  thereon.  A  demurrer  to  this 
complaint  was  sustained.  The  exhaust- 
ive opinion  by  Kay  J.  cites  and  approves 
the  doctrine  laid  ilown  by  Lord  Homilly, 
M.  R.,  in  Shattock  v.  Shattock,  Law  R. 
2  Eq.  182,  and  in  Matthewman  s  Case,  Law 
R.  3  Eq.  781,  and  the  decision  of  the 
court  in  Yale  v.  Dederer,  22  N.  Y.  450 ; 
Ballin  v.  Uillaye,  37  N.  Y.  35;  Willard  v. 
Eastham,  15  Gray,  328.  The  same  doc- 
trine was  repeated  in  Lindley  v.  Cross,  31 
Ind.  106,  which  also  held  that  a  married 
woman  may  charge  her  separate  jjrop- 
erty  for  improvements  which  are  neces- 
sary and  proper  for  its  full  enjoyment,  as, 
for  example,  the  erection  of  a  house  upon 
it.  O'Daily  v.  JNIorris,  31  Ind.  Ill,  liolds 
that  the  common-law  doctrine  as  to  her 
power  to  bind  herself  by  contract  has  not 
been  changed.  Montgomery  v.  Sprankle, 
31  Ind.  113.  A  married  woman,  who  had 
separate  property,  carried  on  a  partner- 
ship in  the  usual  manner  and  form  with 
her  husband.  It  was  held,  that  she  was 
not  liable  for  the  debts  of  the  firm,  nor 


could  her  property  be  charged  therewith. 
Bellows  V.  Rosenthal,  31  Ind.  IIG.  A 
married  woman  was  owner  of  property 
with  wiiich  she  carried  on  a  business  as  a 
dealer  in  clothing  through  her  husband  as 
agent  or  clerk.  The  debts  incurred  in 
the  business,  it  was  held,  could  not  be 
made  out  of  such  property.  Smith  v. 
Howe,  31  Ind.  233.  A  married  woman 
can  only  charge  her  separate  property 
with  such  contracts  as  are  reasonably 
calculated  to  preserve  and  protect  or  ben- 
efit it,  or  to  make  it  more  profitable  to 
her.  These  decisions  clearly  show  that, 
although  the  wife's  property  may  be  her 
own  separate  estate  free  from  any  interest 
or  control  of  her  husband,  her  powers  to 
make  contracts  even  in  relation  to  it  hare 
not  been  in  the  least  increased  by  the  leg- 
islation of  that  State.  Such  powers  are 
the  same  as  those  admitted  by  the  courts 
of  equity  as  incidents  of  her  equitable 
separate  estate.  See,  also,  Mendeidiall  v. 
Tread  way,  44  Ind.  131  ;  .Smither  v.  Cn\- 
vert,  44  Ind.  242;  Kinnaman  v.  Pyle, 
44  Ind.  275;  Sharpe  v.  Clifford,  44  Ind. 
346  ;  Hodson  v.  Davis,  43  Ind.  258  ;  John- 
son V.  Tutewiler,  35  Ind.  353  ;  Hasheagen 
V.  Specker,  36  Ind.  413  ;  Armstrong  v. 
Nichols,  32  Ind.  408;  Coats  v.  McKee, 
26  Ind.  223  ;  Stevens  v.  Parish,  29  Ind. 
260;  Maher  v.  Martin,  43  Ind.  314. 


ACTIONS    AGAINST    HUSBAND    AND   WIFE.  373 

is  made  a  party.  Even  when  the  husband  himself  brings  an 
action  in  order  to  enjoin  a  sale  of  the  homestead,  or  seeking  in 
any  other  way  to  protect  his  right,  the  defendants,  for  their  own 
security,  maj',  and  perhaps  should,  require  the  wife  to  be  brought 
in  as  a  coplaintiff.^ 

§  326.  Statutes  of  California  permit  a  married  woman,  by  com- 
plying with  certain  requirements,  to  carry  on  business  as  a  sole 
trader,  make  her  exclusive  owner  of  the  money,  debts,  and  prop- 
erty embraced  therein,  and  declare  that  the  husband,  under  such 
circumstances,  shall  not  be  responsible  for  any  debts  contracted  by 
her.  Under  this  legislation  it  is  held  that  the  wife  who  engages 
in  business  is  in  respect  thereof  to  be  regarded  as  a  single  woman, 
and  any  action  brought  on  account  of  the  trading  must  be  against 
her  alone  ;  the  joinder  of  the  husband  would  be  improper  and 
irregular.2 

§  327.  At  the  common  law,  the  husband  became  liable  during 
the  marriage  for  the  debts  of  his  wife  contracted  before  the  mar- 
riage;  but  the  action  was  to  be  brought  against  both,  although 
the  satisfaction  of  the  judgment  would  be,  of  course,  made  out  of 
his  property.  In  the  States  where  this  common-law  rule  has  not 
been  abrogated,  the  same  practice  subsists  ;  the  husband  and 
wife  must  be  joined  as  defendants  in  actions  upon  such  demands.^ 

1  Chase  v.  Abbott,  20  Iowa,  154,  160,  158,  per  Dillon  J. ;  Larson    v.  Reynolds, 

per  Cole  J.     "The  right  of  the  wife  in  13  Iowa,  579;  Revallc  i'.  Kraeraer,  8  Cal. 

the  homestead  being  a  vested  rigiit,  she  66,  72 ;  Marks  v.  Marsh,  9  Cal.  96  ;  Moss 

cannot  be  completely  barred  or  divested  v.  Warner,  10  Cal.  296  ;   Sargent  v.  Wil- 

of    that  right   by    judicial    proceedings,  son,  5  Cal.  504  ;  De  Uprey  c.  De  Uprey, 

except  upon  making  her  a  party  tiiereto.  27  Cal.  329,  332.     The  California  rule  is, 

It  would  therefore  be  the  safer  practice,  in  that  in  actions  relating  to  the  homestead, 

all  controversies  affecting  the  homestead,  both    husband  and   wife  must  be    parties 

to  make  her  a  party,  and  generally  she  plaintiff  or  defendant,  as  the  case  ma}'  be  ; 

should  be  a  party.     Where  tiie  husband  if  one  only  is  made  a  party,  lie  or  she  even 

seeks  to  enjoin  a  sale  of  the  homestead  or  is  not  bound.     If  one  is  sued  alone,  the 

other  like  proceedings,  because  it  is  a  other  may  intervene, 
homestead,  and  therefore  exempt  to  him  -  .McKune  v.  McGarvey,  6  Cal.  497. 

in  his  own  right,  we  would  not  now  say  ^  Platner   v.   Patchin,    19    Wise.    333, 

that  the  wife  was  a  necessary  party.  And  335.     The  common-law  rule  as  to  liabil- 

yet   if  he  should  fail  in  his  action  and  ity  and  as  to  the  parties,  is  unchanged  in 

judgment  pass  against  him,  it  is  reason-  Wisconsin.      Beaumont    v.    Miller,    Stan- 

ably  clear  that  such  judgment  would  not  ton's    Code    (Ky.),  p.  75;  Fultz  v.  Fox, 

conclude  the  wife.     The  absolute  safety  9  B.  Mon.  (Ky.)  499,  502.     In  Kentucky, 

of  the  defendant  in  such  a  case,  and  the  the  husband  is  freed  from  personal  liabil- 

conclusiveness  of  the  judgment  as  against  ity;  but  the  property  which  he  acquires 

the  wife,  could  only  be  effected  by  cans-  from  the  wife  by  tlie  marriage,  and  the 

ing  her  to  be  made  a  party,   which  he  land  which  she  owns,  may  be  taken  in  satis- 

would  doubtless  have  aright  to  do."   See  faction  of  the  demand.     The  suit,  how- 

also  Burnap  v.  Cook,  16  Iowa,  149,  153,  ever,  should  be  against  both  jointly. 


374  CIVIL   REMEDIES. 

Even  in  the  States  where  the  former  doctrine  as  to  the  husband's 
liability  has  been  modified,  as  in  New  York,  by  making  him  re- 
sponsible for  such  debts  only  when  he  has  acquired  property  from 
the  wife  by  the  marriage,  and  to  the  extent  merely  of  the  prop- 
erty so  acquired,  the  form  of  the  action  remains  unchanged,  and 
it  must  be  brought  against  both  as  defendants.^ 

§  328.  The  codes  of  several  States  contain  a  provision  that,  "  if 
the  husband  and  wife  be  sued  together,  she  may  defend  for  her  own 
right,  and  if  the  husband  neglect  to  defend,  she  may  defend  for 
his  right  also."  The  former  clause  of  this  section  at  least,  applies 
only  to  equitable  suits  in  which  separate  rights  of  the  "svife  are 
involved,  as,  for  example,  those  relating  to  her  separate  property  ; 
it  has  no  application  to  ordinary  legal  actions  in  which  both  are 
sued  jointly,  and  over  which  the  husband  has  still,  as  under  the 
former  practice,  the  entire  control.^  It  was  a  settled  rule  of  the 
equity  procedure  that,  in  an  action  against  husband  and  wife,  not 
affecting  her  separate  estate  and  seeking  no  relief  against  her 
property,  service  of  process  upon  the  husband  was  a  good  and 
sufficient  service  upon  the  wife,  and  he  could  appear  on  her 
behalf,  so  that  she  would  be  bound  b}^  the  decree  made  upon 
such  service  and  appearance.  This  rule,  it  is  said  in  some  cases, 
still  subsists  under  like  circumstances.  Of  course,  if  the  wife's 
separate  property  is  involved,  or  if  any  relief  is  demanded  against 
her  directly,  she  must  be  personally  served,  and  has  a  right  to 
appear  independently  of  her  husband.  This  right,  although  ex- 
pressly secured  by  statute  in  some  States,  exists  independently  of 
any  such  statutory  permission.^ 

1  Laws  of  New  York  for  1853,  ch.  576,  spouses  to  be  made  defendants,  are  not 
§§  1  and  2.  Tliis  statute  enacts  that  the  affected  by  the  statutory  provision, 
husband  shall  be  liable  for  such  debts  ^  Foote  v.  Lathrop,  53  Barb.  183  ; 
only  to  the  extent  of  the  property  which  Lathrop  v.  Heacock,  4  Lans.  1.  This  was 
lie  may  acquire  from  her  by  the  marriage ;  a  foreclosure  suit,  the  mortgage  being 
and  that  the  ai-tion  may  be  brought  upon  lands  of  the  husband,  so  that  the 
against  them  jointly.  See  Lennox  i'.  wife's  only  possible  interest  was  to  pro- 
Eldred,  65  Barb.  410.  For  a  similar  tect  her  inchoate  right  of  dower.  Wolf 
Kentucky  statute,  see  last  preceding  note.  v.  Banning,  3  Minn.  202,  204.  Contra, 
The  same  rule  prevails  in  Indiana.  Shore  McArthur  r.  iVanklin,  15  Ohio  St.  485; 
V.  Taylor,  46  Ind.  345.  s.  c.  16  Ohio  St.  193.     This  case  was  sini- 

2  Coolidge  V.  Parris,  8  Ohio  St.  594  ;  ilar  in  all  its  features  to  Foote  v.  Lathrop, 
Wolf  V.  Banning,  3  Minn.  202.  Such  supra.  Both  were  parties,  but  service  was 
legal  actions  as  those  for  torts  done  by  made  on  the  husband  alone.  Held,  that 
the  wife,  or  debts  due  by  her  diiw  aolu,  and  the  wife  was  not  concluded,  and  her  dower 
others,  in  which  tiie  law  still  requires  both  right  was   not  cut  off.     The   cases    are 

diametrically  opposed  to  each  other. 


DEFENDANTS    IN    EQUITABLE   ACTIONS.  375 


THIRD  :    EQUITABLE    ACTIONS. 

§  329.  I.  General  Principles.  In  all  equitable  actions,  a  broad 
and  most  important  distinction  must  be  made  between  two  classes 
of  parties  defendant ;  namely,  (1)  those  who  are  "  necessary," 
and  (2)  those  who  are  "  proper."  Necessary  parties,  when  the 
term  is  accurately  used,  are  those  without  whom  no  decree  at  all 
can  be  effectively  made  determining  the  principal  issues  in  the 
cause.  Proper  parties  are  those  without  whom  a  substantial 
decree  may  be  made,  but  not  a  decree  which  shall  completely 
settle  all  the  questions  which  may  be  involved  in  the  contro- 
versy, and  conclude  the  rights  of  all  the  persons  who  have  any 
interest  in  the  subject-matter  of  the  litigation.  Confusion  has 
frequently  arisen  from  a  neglect  by  text-writers,  and  even  judges, 
to  observe  this  plain  distinction.  Parties  are  sometimes  spoken 
of  as  necessary  when  they  are  merely  proper.  Thus,  because  a 
decree  cannot  be  rendered  which  shall  determine  the  rights  of 
certain  classes  of  individuals  without  making  them  defendants  in 
the  action,  they  are  not  unfrequently  called  necessary  parties ; 
or,  in  other  words,  because  they  must  be  joined  as  defendants  in 
a  particular  suit,  in  order  that  the  judgment  therein  may  bind 
them^  they  are  denominated  "  necessary  "  parties  absolutely.  Such 
persons  are  "  necessary  "  sub  modo  —  that  is,  they  must  be  brought 
in  if  it  is  expected  to  conclude  them  by  the  decree ;  but  to  call 
them  "necessary"  absolutely  is  to  ignore  the  familiar  and  funda- 
mental distinction  between  the  two  classes  of  parties  which  has 
just  been  mentioned.  This  inaccurate  use  of  language  would 
make  every  person  a  necessary  party  who  should  actually  be 
joined  as  a  codefendant  in  an  equitable  action. 

§  330.  I  will  illustrate  these  positions  by  a  familiar  example. 
In  an  action  to  foreclose  a  mortgage,  the  owner  of  the  land 
covered  by  it  is  a  necessary  defendant,  because  without  his  pres- 
ence no  decree  can  be  made  for  the  sale  of  the  land  ;  in  other 
words,  no  effective  decree  at  all,  and  the  suit  would  be  an  empty 
show  of  litigation.  The  holders  of  subsequent  mortgages,  judg- 
ments, and  other  liens  upon  the  same  land,  are  not  necessary 
parties  in  order  to  the  rendition  of  an  effective  judgment,  because 
the  land  can  be  sold  without  their  presence  and  without  cutting 
off  their  liens.     If,  however,  the  plaintiff  desires  to  settle  all  the 


376  CIVIL   REMEDIES. 

questions  involved  in  one  controversy,  and  to  determine  the  rights 
of  all  the  persons  who  have  any  interest  in  the  land,  he  mu^t 
bring  in  all  these  holders  of  subsequent  liens,  so  that  a  judgment 
may  be  given  which  shall  foreclose  their  rights.  To  accomplish 
this  end,  these  persons  must  be  made  defendants;  and  in  that 
respect  they  are  necessary  parties  —  that  is,  necessary  in  order 
to  attain  the  particular  result  desired.  They  are  not,  however, 
necessary  to  the  decision  of  the  main  issues  involved  in  the  suit 
and  to  the  granting  of  a  decree.  If  we  use  language  accurately, 
we  shall  call  them  proper  parties,  and  shall  thus  distinguish  them 
from  the  other  class,  without  whom  the  judicial  machinery  can- 
not be  put  in  motion.  Every  person  who  is  rightly  joined  as  a 
defendant  in  an  equitable  action,  is,  in  a  certain  broad  sense,  a 
necessary  party,  because  his  presence  is  necessary  to  accomplish 
some  particular  end,  and  to  make  the  judgment  more  complete 
than  it  otherwise  would  have  been ;  but  to  use  the  term  in  this 
broad  sense  is  to  lose  all  the  benefits  of  an  accurate  classification 
and  of  practical  rules  depending  on  such  classification.  To  sum 
up :  Necessary  parties  defendant  are  those  without  whom  no 
decree  at  all  can  be  rendered  ;  proper  parties  defendant  are  those 
whose  presence  renders  the  decree  more  effectual ;  and  all  the 
proper  parties  are  those  by  whose  presence  the  decree  becomes  a 
complete  determination  of  all  the  questions  which  can  arise,  and 
of  all  the  rights  which  are  connected  with  the  subject-matter 
of  the  controversy.  A  practical  test  will  at  once  fix  the  class 
into  which  any  given  persons  interested  in  an  equitable  litigation 
must  fall.  If  the  person  is  a  necessary  defendant,  a  demurrer  for 
defect  of  parties  on  account  of  his  nonjoinder  will  be  sustained ; 
and  conversely,  if  the  demurrer  will  be  sustained,  the  person  is  a 
necessary  party.  If  the  given  person  is  merely  a  proper  party, 
such  a  demurrer  will  not  be  sustained  on  account  of  his  non- 
joinder, although  the  court  may  undoubtedly,  in  the  exercise  of 
its  discretion,  order  him  to  be  brought  in. 

§  331.  The  principal  provision  quoted  at  the  commencement 
of  the  present  Section,  and  which  is  the  same  in  all  the  codes  of 
procedure,  is  a  general  and  concise  statement  of  the  doctrine 
which  had  long  prevailed  in  courts  of  equity  in  relation  to  the 
joinder  of  defendants.  As  the  language  of  this  provision  is  per- 
missive—  anj'  person  maybe  made  a  defendant,  not  must  be  —  it 
was  evidently  intended  to  embrace  '■'  proper  "  as  well  as  "  neces- 


DEFENDANTS   IN   EQUITABLE    ACTIONS.  377 

sary  "  parties  within  its  requirement.  The  doctrine  of  equity, 
expressed  in  its  most  general  form,  is,  that  all  persons  materially 
interested,  either  legally  or  beneficially,  in  the  subject-matter  of 
the  suit,  should  be  made  parties  to  it,  either  as  plaintiffs  or  as 
defendants,  so  that  there  may  be  a  complete  decree  w^hich  shall 
bind  them  all.^  Those  whose  interests  are  adverse  to  the  claims  set 
up  by  the  plaintiff,  and  who  would  therefore  naturally  resist  such 
claims,  should  be  brought  into  the  action  as  defendants.  On  the 
other  hand,  those  whose  interests  are  concurrent  with  the  inter- 
ests of  the  principal  plaintiff  who  actually  institutes  and  prose- 
cutes the  suit,  should  primarily  be  joined  with  him  as  coplaintiffs. 
But,  as  has  already  been  shown  in  the  preceding  section,  equity 
procedure  is  not  strenuous  in  respect  to  this  accurate  division, 
and  often  permits  individuals  of  the  latter  class  to  be  made  de- 
fendants, being  satisfied  if  they  are  before  the  court  so  as  to  be 
bound  by  the  decree.  The  persons  who  are  interested  in  resisting 
the  demands  of  the  actual  plaintiff,  and  who  must  therefore  be 
defendants  in  the  action,  are  separated,  according  to  the  nature  of 
their  interests  and  of  their  relations  with  each  other,  into  two 
classes,  —  those  immediately  interested,  and  those  consequen- 
tially interested.  When  an  individual  is  in  the  enjoyment  of  the 
subject-matter,  or  has  a  right,  interest,  or  estate  in  it,  either  in 
possession  or  in  expectancy,  which  is  liable  to  be  defeated  or 
diminished  by  the  plaintiff's  success,  he  has  an  immediate  and 
direct  interest  in  resisting  the  plaintiff's  demand,  and  is,  in 
general,  a  necessary  defendant.  The  interest  here  spoken  of 
need  not  be  personal  and  beneficial ;  it  includes  any  estate  or 
right  in  the  subject-matter,  legal  or  equitable,  whether  beneficial 
to  the  holder  thereof  or  not.^  Numerous  illustrations  of  this 
fundamental  doctrine  are  given  in  the  succeeding  portions  of  this 
Section. 

§  332.  If  a  person  not  thus  immediately  interested  is,  never- 
theless, so  related  to  the  subject-matter  and  to  the  principal 
defendant  that,  upon  the  plaintiff 's  success,  he  will  be  liable  to 
be  proceeded  against  by  such  defendant,  and  to  be  compelled  to 
make  compensation,  in  whole  or  in  part,  for  the  loss,  he  is  conse- 

1  See  Story,  Eq.  PI.  §§  72,  76  a.     It  of  the  suit  should  be  made  parties.     See 

has  been  suggested  that  tliis  general  doc-  Calvert  on  Parties,  pp.  1-11 ;  Story,  Eq. 

trine  siiould  be  stated  as  follows  :  All  per-  PI.  §§  76  b,  76  c. 
sons   materially   interested   in  the  object         2  j  Dan.  Ch.  PI.  (4th  Am.  ed.)  p.  246. 


378  CIVIL   REMEDIES. 

quentially  interested  in  the  subject  of  the  action,  and  is  also,  in 
general,  a  necessary,  or  at  least  a  proper  codefendant.  Equity 
requires  this  class  of  persons  to  be  joined  as  defendants,  not 
because  they  will  be  directly  affected  by  the  decree  when  ren- 
dered, but  because  if  the  plaintiff  succeeds  against  the  principal 
defendant,  the  latter  will  then  have  the  right  to  call  upon  them  to 
reimburse  him,  wholly  or  partially,  or  to  do  some  other  act  which 
shall,  according  to  the  nature  of  the  case,  restore  or  tend  to 
restore  him  to  his  former  position  before  the  recovery  against 
him.  To  avoid  a  multiplicity  of  actions,  such  persons  should,  in 
general,  be  brought  into  the  suit  in  the  first  instance,  so  that 
their  secondary  or  consequential  liabilities  may  be  determined 
and  adjusted  together  with  the  main  issues  in  the  one  decree.^  I 
shall  now  apply  these  very  general  statements  of  doctrine  to  the 
classes  of  cases  which  most  frequently  arise  in  actual  practice. 

§  333.  II.  Actions  to  foreclose  Mortgages.  The  first  class  or 
group  of  equitable  actions  Avhich  I  shall  take  up,  both  because  it 
is  the  most  familiar  and  because  it  illustrates  very  clearly  the 
general  doctrine,  is  that  of  suits  to  foreclose  mortgages.  The 
statute  distributes  the  persons  who  may  be  proper  or  necessary 
parties  defendant  into  two  divisions,  those  "  who  have  or  claim 
an  interest  in  the  controversy  adverse  to  the  plaintiff,"  and  those 
"  who  are  necessary  parties  to  a  complete  determination  or  settle- 
ment of  the  questions  involved  therein."  It  is  plain  that  the 
latter  division  is  the  more  comprehensive,  and  in  fact  includes 
the  former.  Every  person  "  who  has  or  claims  an  interest  in  the 
controversy  adverse  to  the  plaintiff,"  is  evidently  "  a  necessary 
party  to  a  complete  determination  of  the  questions  involved 
therein ; "  but,  on  the  other  hand,  it  is  equally  evident  that  there 
may  be  persons  "  who  are  necessary  parties  to  a  complete  deter- 
mination of  the  questions  involved,  but  who  do  not  have  nor 
claim  any  interest  in  the  controversy  adverse  to  the  plaintiff." 
A  single  example  will  illustrate  this  position.  The  codes  of  sev- 
eral States  require  the  assignor  of  a  thing  in  action  to  be  made  a 
codefendant  "  to  answer  to  the  assignment "  in  a  suit  brought  by 
the  assignee.     Of  the  two  defendants,   when  this  is  done,  the 

1  1  Dan.  Cli.  PI.  (4th  Am.ed.)  p.  282;  333;  Cosby  v.  Wickliffe,  7  B.  Mon.  120; 

See,  also,  Story  Eq.  Pi.  §§159,  1G2,  1G9,  Wiser   v.   Blacliiy,    1    Jolins.    Cli.    437; 

160a,  172,  173,  176  ;  Greenwood  y.  Atliin-  New   Eng.  &c.   Banlc  v.  Newport  Steam 

son,  5  Sim.  410  ;  Willvinson  v.  Fowlies,  Factory,  6  R.  I.  154. 
9  Hare,  193  ;  Kniglit  v.  Kniglit,  3  P.  Wms. 


DEFENDANTS   IN   FORECLOSURE   SUITS.  379 

debtor  alone  has  an  interest  in  the  controversy  adverse  to  the 
plaintiff.  The  assignor  has  no  such  interest ;  he  is  not  liable  for 
the  debt ;  his  interest  in  the  result  is  rather  in  accord  with  than 
in  opposition  to  the  plaintiff.  He  is,  however,  a  necessary  party 
to  a  complete  determination  and  settlement  of  the  questions  in- 
volved in  the  suit.  One  of  these  questions  is,  whether  the  cause 
of  action  was  in  fact  assigned  to  the  plaintiff ;  and  it  is  important 
to  the  rights  of  the  debtor  that  this  question  be  for  ever  settled  in 
the  single  action.  In  the  absence  of  any  positive  requirement  of 
the  statute,  the  assignor  would  not  be  a  necessary  defendant,  be- 
cause a  judgment  could  be  rendered  against  the  debtor  without 
the  presence  of  the  assignor.  This  example  well  illustrates  my 
statement  above,  that  one  may  be  a  party  necessary  to  the  settle- 
ment of  all  the  questions  involved  in  the  suit,  and  at  the  same 
time  neither  have  nor  claim  any  interest  adverse  to  the  plaintiff. 
This  evident  distinction  will  aid  us  in  discriminating  between  the 
necessary  and  the  proper  parties  defendant  in  any  given  equitable 
action,  for,  as  a  general  proposition,  all  those  persons  who  have 
or  claim  an  interest  in  the  controversy  adverse  to  the  plaintiff 
are  "  necessary''''  defendants,  if  by  "interest  adverse  "  is  intended 
an  interest  opposed  to  a  recovery  of  judgment  hy  the  jjlaintiff; 
while  those  who,  in  contradistinction  to  the  former,  are  merely 
"  necessary  parties  to  a  complete  determination  of  the  questions 
involved,"  are,  in  the  main,  '■'■proper'''  defendants. 

§  334.  These  principles  may  now  be  applied  to  the  class  of 
actions  under  immediate  discussion,  —  those  brought  to  foreclose 
mortgages.  Those  persons  who  own  or  have  an  estate  in  the 
land  to  be  sold  under  the  decree,  and  those  who,  in  the  original 
creation  of  the  debt,  or  by  any  subsequent  assumption  of  it,  are 
debtors  to  the  mortgagee,  and  therefore  liable  to  a  personal 
judgment  for  a  deficiency,  have  an  interest  in  the  controversy 
adverse  to  the  plaintiff,  and  are  beyond  doubt  necessary  parties, 
if  the  plaintiff  desires  to  obtain  all  the  relief  which  the  law 
affords  him,  namely,  of  sale  and  personal  judgment  for  deficiency. 
If,  however,  the  plaintiff  will  be  satisfied  with  a  partial  relief, 
and  simply  asks  a  decree  for  a  sale  without  any  personal  judg- 
ment for  a  deficiency,  the  debtor,  unless  he  is  also  owner  of  the 
land  in  whole  or  in  part,  is  not  a  necessary  defendant.  The 
decree  and  sale  must  of  course  divest  all  ownership  and  titles  to 
the  land  or  any  part  thereof,  or  else  there  would  be  no  sale  but 


380  CIVIL    REMEDIES. 

simply  tlie  show  of  one.  But  in  oi-der  that  the  land  may  produce 
its  full  value,  the  decree  and  sale  must  go  further  than  this,  and 
must  cut  off  all  subsequent  liens  and  incumbrances,  and  inchoate 
interests  which  are  not  titles  but  merely  the  seeds  of  titles. 
There  is  thus  a  threefold  object  of  the  judgment :  (1)  To  divest 
the  title  of  the  present  owner,  and  transfer  the  ownership  to  the 
purchaser.  This  is  essential,  and  all  persons  who  have  any  such 
title  are  necessary  parties,  for  without  them  the  whole  action 
would  be  a  nullity.  (2)  To  cut  off  all  liens  and  inchoate  interests, 
so  that  the  land  can  be  sold  at  a  greater  advantage.  This  is  of 
course  not  absolutely  essential,  for  a  sale  can  be  effected  without 
it.  The  holders  of  such  liens  and  inchoate  interests  are  proper 
parties.  (3)  To  obtain  a  decree  for  any  deficiency  which  may  arise 
after  the  sale,  against  those  persons  who  are  liable  for  the  mort- 
gage debt.  All  such  debtors  are  necessary  parties  if  the  plaintiff 
seeks  to  obtain  this  particular  relief ;  but  he  may  waive  this 
relief  and  content  himself  with  the  sale  and  the  proceeds  thereof, 
in  which  case  these  mere  debtors  would  not  be  necessary  defend- 
ants. The  foregoing  principles  have  been  adopted  by  all  the 
courts.  The  doctrine  is  universally  established  that  in  the  equi- 
table action  to  foreclose  a  mortgage  by  a  sale  of  the  mortgaged 
premises,  all  persons  who  own  the  land  or  any  part  thereof,  all 
who  have  any  interest  therein  vested  or  contingent,  perfected  or 
inchoate,  subsequent  to  the  giving  of  the  mortgage,  all  who  are 
owners  or  holders  of  any  subsequent  liens  or  incumbrances 
thereon,  and  finally  all  who  are  personally  liable  for  the  debt 
secured  by  the  mortgage,  may  generally  be  united  as  defendants ; 
and  must  be  made  defendants  if  the  plaintiff  seeks  to  obtain  a 
decree  affording  him  all  the  relief  which  the  court  can  grant.  As 
titles,  interests,  and  liens  prior  and  paramount  to  the  mortgage 
are  in  no  way  affected  by  it  or  by  the  decree  of  foreclosure  and 
the  sale  thereunder,  the  owners  and  holders  thereof  are  neither 
necessary  nor  proper  parties. 

§  335.  While  this  general  statement  of  the  doctrine  is  univer- 
sally accepted,  there  are  some  points  of  difference  in  its  practical 
application.  These  differences  will  be  found,  upon  careful  ex- 
amination, to  arise,  not  from  any  doubt  as  to  the  general  prin- 
ciple itself,  but  from  a  certain  want  of  uniformity  in  the  local 
law  of  the  various  States  in  respect  to  the  nature  of  liens  and 
incumbrances  upon  the  land,  and  in  respect  to   the  nature  of 


DEPENDANTS   IN    FORECLOSURE   SUITS.  381 

inchoate  or  contingent  interests  in  the  land.  Thus,  if  in  one  State 
a  judgment,  when  docketed,  becomes  a  lien  upon  the  lands  of  the 
debtor,  and  in  another  such  a  judgment  is  not  a  lien,  a  judgment 
creditor  of  the  owner  of  the  mortgaged  premises  would  plainly  be 
a  proper  party  defendant  in  the  first-named  State,  and  as  plainly 
not  a  proper  party  in  the  second.  The  most  important  difference 
in  the  local  law  defining  and  regulating  the  nature  of  interests  in 
the  land,  relates  to  the  inchoate  dower  of  the  wives  of  mortgagors 
and  of  other  subsequent  owners,  and  especially  where  the  mort- 
gage is  given  for  purchase-money  so  as  to  take  precedence  of  the 
dower  right  of  the  mortgagor's  Avife.  In  some  States  where 
dower  is  carefully  protected,  the  wives  of  the  mortgagors  and  of 
other  subsequent  owners  of  the  land  are  in  all  cases  regarded  as 
having  a  positive  interest  in  the  equity  of  redemption,  even 
though  they  joined  in  the  execution  of  the  mortgage,  or  even 
though  the  lien  of  the  mortgage  be  prior  to  their  dower  right ; 
and  they  are  therefore,  under  all  possible  circumstances,  necessary 
defendants  if  the  plaintiff  wishes  to  cut  off  their  rights  of  redemp- 
tion. In  other  States,  the  wives,  under  some  circumstances  at 
least,  are  not  regarded  as  having  any  real  interest  in  the  land, 
nor  any  right  of  redemption,  and  they  need  not  therefore  be 
made  defendants  for  any  purpose.  This  example  is  a  sufficient 
illustration,  and  shows  that  any  difference  in  the  practical  rules 
laid  down  by  various  courts  arises  from  a  variation  in  the  law 
defining  the  nature  of  interests  in  the  land;  what  constitutes  an 
interest  in  one  State  may  not  do  so  in  another. 

§  336.  I  pass  from  this  broad  statement  of  the  general  prin- 
ciple to  a  more  careful  discussion  of  the  rules,  with  an  analysis 
of  some  leading  cases.  The  doctrine  which  I  have  thus  stated 
is  approved  and  applied  under  various  circumstances,  and  to  dif- 
ferent classes  of  persons  having  different  interests  and  liens  in  the 
cases  cited  in  the  foot-note.^  AVhen  the  mortgagor  remains  owner 

•  Hall  V.  Nelson,  23  Barb.  88  ;  14  How.  at  the  time  of  commencing    the   action 

Pr.  32 ;  Story,  Eq.  PI.,  §§  193,  197  ;  Peto  makes  no  difference  in  the  application  of 

V.    Hammond,    29    Beav.    91 ;     Maule    v.  this  rule.     Drury  v.  Clark,  16  How.  Pr. 

Duke  of  Beaufort,  1   Russ.  349  ;  Lenox  424.     The  mortgagor  who  has  conveyed 

V.  Reed,  12  Kans.  223,  228.    Owner  of  the  away  the  land  to  a  grantee  who  assumed 

land  is  a  necessary  defendant,  and  the  ob-  to  pay  the  mortgage  debt,  and  who  is  made 

jection  on  account  of  his  omission  may  be  a  defendant,  is  not  a  necessar-y  p^rty .     Mc- 

taken   by  the  mortgagor  in  his  answer.  Arthur  v.  Franklin,  15  Ohio  St.  485,  509 ; 

The  fact   that  the  deed  from  the  mort-  s.  c.  16ib.  193.  The  wife  of  the  mortgagor, 

gagor  to  this  owner  was  not  put  on  record  who  joined  in  executing  the  mortgage,  is  a 


382 


CIVIL   REMEDIES. 


of  the  premises,  he  is  of  course,  on  every  account,  a  necessary 
defendant.     If,  however,  lie  has  conveyed  away  the  entire  land 


necessary  party  in  order  to  cut  off  her 
riglit  of  rc(lemj)ti()n  ;  citing  and  approv- 
ing Denton  v.  Nanny,  8  Barb.  024 ;  Mills 
V.  Van  Voorliies,  20  N.Y.  415 ;  and  Story's 
Eq.  PI.,  §§  72,  70  a.  Union  Bank  v.  Bell, 
14  Ohio  St.  200.  Where  a  mortgagor  had 
conveyed  the  land  to  assignees  in  trust 
for  his  creditors,  it  was  held,  in  an  action 
to  foreclose  the  mortgage  in  which  the 
mortgagor  and  the  assignees  were  made 
defendants,  that  judgment  creditors  of  the 
mortgagor  whose  judgments  were  re- 
covered subsequent  to  the  assignment, 
were  proper  defendants,  and  could  set  up 
usury  in  the  mortgage  as  a  defence  there- 
to ;  that  the  trustees  could  set  up  such  a 
defence,  and  these  cestnis  r/ue  tru&ient  could 
do  the  same.  Brinkerhoff  J.,  after  quot- 
ing the  section  of  the  code  relating  to  de- 
fendants, said  :  "  These  creditors  have  an 
interest  in  the  controversy  adverse  to  the 
plaintiff,  and  tliey  are  therefore  proper 
parties  defendant."  See  this  case  at 
large.  Delaplaiiie  v.  Lewis,  19  Wise.  476. 
A  mortgagor  who  has  absolutely  con- 
veyed away  the  land  is  not  a  necessary 
defendant.  Cole  J.  (p.  478)  :  "  Accord- 
ing to  the  weight  of  modern  autliority, 
tlie  rule  seems  to  be  settled  tiiat  the  mort- 
.gagor  who  has  absolutely  parted  with  the 
equity  of  redemption  is  not  a  necessan/, 
though  lie  is  a  very  proper  defendant  in  an 
action  to  foreclose  the  mortgage ;  "  citing 
Bigelow  V.  Bush,  6  Paige,  343 ;  Shaw  v. 
Hoadley,  8  Blackf  165;  Van  Nest  v. 
Latson'  19  Barb.  604  ;  Drury  t'.  Clark,  16 
How.  Pr.  424  ;  Story's  Eq.  PI.  197.  Cord 
r.  Hirsch,  17  Wise.  403.  The  owner  of  the 
land  is  a  necessary  defendant.  Green  v. 
Dixon,  9  Wise.  532.  See  this  case  for  a 
general  discussion  of  the  entire  doctrine 
as  to  i)arties  in  foreclosure  suits.  Nichols 
V.  Randall,  5  Minn.  304,  308,  per  Emmett 
C.  J.  When  the  mortgage  debt  is  secured 
by  the  obligation  of  any  person  other  than 
the  mortgagor,  the  plaintiff  may,  in  Min- 
nesota (by  express  statute),  make  such 
other  person  a  defendant  in  the  foreclos- 
ure suit,  and  the  court  may  decree  against 
him  for  any  deficiency.  "  The  plaintiff, 
in  an  action  to  foreclose,  may  make  any 
one  a  party  defendant  who  has  or  claims 
to  have,  through  the  mortgagor,  any  in- 


terest in  the  mortgaged  premises,  and  the 
mere  fact  that  the  relief  asked  against 
him  is  different  from  that  asked  against 
the  mortgagor  or  other  defendant  can 
make  no  difference."  Wolf  ».  Banning, 
3  Minn.  202,  204.  When  a  mortgage  is 
given  by  a  husband  and  wife  on  land 
which  is  the  wife's  separate  property,  the 
husband  is  a  necessary  party  because  of 
his  interest  as  husband,  and  because  of 
his  lialjility  on  the  note  or  other  evidence 
of  debt  in  which  he  joined,  for  any  defi- 
ciency. Mavrich  v.  Grier,  3  Nev.  52.  A 
trustee  of  a  married  woman  gave  a  mort- 
gage for  the  purchase-money  of  land 
which  he  held  in  trust.  An  action  to  fore- 
close was  brought,  and  it  was  held  tliat 
the  married  woman  and  her  husband,  as 
well  as  the  trustee,  were  necessary  de- 
fendants. Beatty  C.  J.  (p.  57)  :  "  It  seems 
to  be  well  settled  that,  in  a  bill  to  foreclose 
a  mortgage  against  a  trustee,  the  cestui 
ffie  trust  must  he  made  a  party.  Story's 
Eq.  PI.,  §§  207,  209.  The  wife,  though 
not  a  party  to  the  mortgage,  was  a  neces- 
sari/  defendant.  When  a  married  woman 
is  a  necessary  defendant,  it  seems  equally 
clear  that  the  husband  should  also  be  a 
party  to  the  suit  and  joined  with  her,  un- 
less his  interest  is  adverse,  when  he  might 
be  made  a  plaintiff."  This  ruling  as  to  the 
husband  would  certainly  not  be  followed 
in  those  States  which  have  completely 
separated  the  interests  of  the  husband  and 
the  wife  in  respect  of  her  own  property. 
Thornton  v.  Pigg,  24  .Mo.  249 ;  Riddick 
V.  Walsh,  15  Mo.  538.  In  an  action  to 
foreclose  a  mortgage  executed  by  a  hus- 
band and  wife,  the  wife  is  not  a  necessary 
defendant  in  Missouri.  Miles  v.  Smith, 
22  Mo.  502.  In  same  State,  when  the 
mortgagor  is  dead,  his  personal  represen- 
tatives are  necessary  defendants  with  his 
lieirs  and  widow.  Fletcher  v.  Holmes,  32 
Ind.  497  ;  an  action  on  a  purchase  money 
mortgage  in  which  the  wife  of  mortgagor 
did  not  join  ;  she  was  not  made  a  defend- 
ant. Elliott  .J.  held,  (1)  that,  under  the 
Indiana  statute,  the  wife  takes  her  dower 
as  the  statutory  heir  of  her  husband,  and 
not  under  tlie  common  law  ;  she  takes  in 
fee,  and  without  assignment.  (2)  That, 
in  case  of  a  purchase  money  mortgage, 


DEPENDANTS   IN    FORECLOSURE    SUITS. 


383 


by  an  absolute  deed  of  conveyance,  the  grantee,  who  is  the  owner 
at  the  time  of  commencing  the  suit,  is  a  necessary  party  defend- 


she  has  no  right  to  redeem  either  as  wife 
or  widow,  and  is  not  a  proper  party  ;  she 
is  cut  off  by  tlie  decree  and  sale,  even 
though  not  a  party.     Mills  v.  Van  Voor- 
liies,  20  N.  y.  412,  is  expressly  repudiated. 
Frazer  J.  dissented  entirely  from  this  rea- 
soning, and  from  the  conclusion,  adopting 
the  doctrine  of  the  New  York  case  just 
mentioned.     Gregory  C.  J.  dissented  from 
the   reasoning,   holding   that,    when    the 
mortgaged    premises    do   not  exceed   in 
value  the  amount  of  the  debt,  the  wife  has 
no  right  of  redemption  ;  but  when  they  do 
so  Exceed  the  debt,  she  has  such  right. 
This  case  does  not  seem,  therefore,  to  de- 
cide any  rule  definitively.     Chambers  v. 
Nicholson,  30  Ind.  349.     When  the  ordi- 
nary   mortgage  —  i.    e.,    not    purchase- 
money —  is  executed  by  the  mortgagor 
and  his  wife,  she  is  a  proper  defendant. 
Martin  v.  Noble.  29  Ind.  21G.     The  com- 
plaint must  show  that  defendant  has  or 
claims  some  interest.     Watt  v.  Alvord, 
25  Ind.  533.     The  wife  of  the  owner,  to 
whom  the  mortgaged  premises  have  been 
conveyed,  and  who  is  liimself  a  defendant, 
is  also  a  proper  defendant.     "  Inasmuch 
as  she  has  a  contingent  interest  in  the 
equity  of  redemption,  we  know  of  no  rea- 
son why  she  should  not  be  made  a  party 
to    foreclose    that    contingent  interest." 
Johnson  v.  Britton,  23  Ind.  105.     Where 
A.  conveyed  lands  on  which  there  was  a 
mortgage  which  he  had  before  executed 
to  B.,  and  agreed  with  his  grantee  to  pay 
oft'  said   mortgage   to   B.,  and  gave  his 
grantee  a  mortgage  on  other  land  to  se- 
cure the  performance  of  that  agreement ; 
in  an  action  by  tlie  grantee  to  foreclose 
the  last-mentioned  mortgage  on  account 
of  the  mortgagor's  failure  to  perform  his 
agreement,  and  pay  off  the  former  one,  it 
was  held  that  B.,  the  holder  of  such  first- 
named  mortgage,  was  a  proper  but  not  a 
necessary  defendant.      The  court  would 
order  him  to  be  brought  in  if  the  mort- 
gagor should  demand  it  for  his  own  pro- 
tection, or  if  he  himself  should  intervene. 
Holdridge  v.  Sweet,  23  Ind.  118;  French 
V.  Turner,  15  Ind.  59.     When  a  mortgage, 
given  to  secure  a  bond,  was  assigned,  but 
no  assignment  was  written  on  the  bond, 
under  the  special  provisions  of  the  Indiana 


code  in  relation  to  assignment  of  things  in 
action,  the  assignor  (the  mortgagee)  is  a 
necessary   defendant.     Stevens  v.  Camp- 
bell, 21  Ind.  471.     Where  a  mortgage  had 
been  executed  by  a  husband  and  wife,  and 
the  land  had  been  subsequently  conveyed, 
the  mortgagor  and  wife  are  not  necessary 
parties  in  an  action  to  foreclose  brought 
against  their  grantee,  unless  the  plaintiff 
asks  a  judgment  for  deficiency  against  the 
mortgagor,  or  unless  he  wishes  to  cut  off 
any  riglit  of  redemption  which  may,  un- 
der some  circumstances,  remain  in   the 
wife  ;  but  the  grantee  has  no  interest  in 
these  questions,  and  cannot  raise  them. 
If  the  wife  had  united  in  the  deed  of  con- 
veyance  to   the    grantee,   she   would,  of 
course,  have  parted  with  all  possible  in- 
terest in   the  land,  and  could   not  be  a 
proper  defendant.      Sumner  v.  Coleman, 
20  Ind.  486,  holds  that  the  owner  of  the 
land  subject  to  the  mortgage  is  not  a  nec- 
essary, although  he  is  a  proper  party  de- 
fendant.    This  decision  is  opposed  to  the 
overwhelming  weigiit  of  authority,  and  is 
clearly    wrong   in   principle.      Gower  v. 
Howe,   20   Ind.   396.     A  mortgage   was 
given  to  secure  a  negotiable  promissory 
note.    The  payee  and  mortgagee  indorsed 
and  transferred   the  note  to  the  plaintiff, 
but  did  not  expressly  assign  the  mortgage. 
Held,  that  such  assignor  was  not  a  neces- 
sary defendant  under  the  Indiana  code,  as 
the  note  was  assigned  by  indorsement,  and 
its  transfer  carried  with  it  the  mortgage 
also.     Burkham    v.  Beaver,  17  Ind.  367. 
A  mortgagor  who  has  conveyed  away  the 
equity  of  redemption  is  not  a  necessary 
defendant ;    but    no   judgment  for  defi- 
ciency can  be  rendered  without  his  pres- 
ence as  a  party.     Gaines  v.  Walker,  16 
Ind.  361.     A  subsequent  judgment  cred- 
itor of  the  mortgagor  is  not  a  necessary 
defendant  ;     and    an    allegation    in    the 
answer  that  such  a  person  has  not  been 
made  a  party  is  immaterial.     Proctor  v. 
Baker,  15  Ind.  178.     A  junior  mortgagee 
is  not  a  necessary  defendant ;  but,  if  not 
made  a  party,  he  may  redeem  after  the 
decree  and  sale.      Muir  v.  Gibson,  8  Ind. 
187  ;  Story's  Eq.  PI.,  §  196.    If  the  mort- 
gagor dies  intestate  owning  the  land,  his 
heirs  are  necessary  parties  defendant ;  no 


384 


CIVIL  REMEDIES. 


ant,  even  though  his  deed  has  not  been  put  upon  record,  because 
witliout  his  presence  the  decree  for  a  sale,  which  is  the  essential 


decree  is  possible  witliout  tliein  ;  and  the 
court  will  order  tliem  brought  in  on  its 
own  motion,  even  if  the  objection  has  not 
been  raised.  Douglass  c.  Bishop,  27 
Iowa,  214,  210.  When  a  part  of  the 
mortgaged  premises  has  been  conveyed, 
the  grantee  thereof  is  not  an  indispensable 
party  to  the  foreclosure  ;  the  decree  is  not 
void  ;  the  purchaser  under  it  would  ob- 
tain a  title  subject  to  the  right  of  the 
grantee  to  redeem.  This  case  is  to  be 
distinguished  from  that  in  which  the  en- 
tire premises  have  been  conveyed.  New- 
comb  V.  Dewey,  27  Iowa,  381.  A  junior 
incumi>rancer  is  not  a  neressnrij  party  de- 
fendant, but  must  be  made  a  defendant  in 
order  to  cut  off  his  right  of  redemption. 
Moomey  v.  Maas,  22  Iowa,  380.  A  hus- 
band gave  a  mortgage  in  which  his  wife 
did  not  join,  and  afterwards  dieil,  leaving 
her  his  widow.  The  mortgage  was  sub- 
sequently forecloseil  in  an  action  in  which 
she  was  made  a  defendant,  but  the  peti- 
tion contained  no  allegations  respecting 
her  dower  rigiit,  nor  was  such  right  put 
in  issue.  The  land  was  sold  under  the 
decree.  Held,  that  her  dower  right  was  not 
cut  off;  it  was  unaffected  by  the  decree, 
and  she  need  not  redeem.  See  also,  to  the 
same  effect,  Merchants  Bank  v.  Tliom- 
son,  55  N.  Y.  7, 11.  Huston  v.  Stringliam, 
21  Iowa,  36.  Althougli  the  mortgagor 
has  conveyed  the  land,  he  is  a  proper 
party,  and  may  come  in  and  contest  the 
validity  of  the  mortgage.  If  he  has  died, 
his  administrator  may  do  the  same.  In 
tliis  case  tiie  administrator,  who  had  been 
made  a  defendant,  set  up  the  defence  of 
usury.  Tiie  plaintiff,  therefore,  struck 
him  out  as  a  party.  Held,  that  he  should 
be  permitted,  on  his  own  apj)iication,  to 
come  in  and  defend  by  alleging  such  de- 
fence. As  tlie  mortgagor  or  his  estate 
may  be  held  liable  for  a  deficiency,  this 
decision  is  clearly  just.  Standish  v.  Dow, 
21  Iowa,  363.  The  holder  of  a  prior 
mortgage  is  a  proper  but  not  a  necessary 
party  defendant,  even  though  the  validity 
of  his  mortgage  is  not  attacked,  and  no 
relief  is  asked  against  him.  Srd  q\i.,  as 
it  is  conceded  that  tlie  rights  of  tiie  prior 
mortgagee  are  not  affected,  why  should  he 
be  put  to  any  trouble  for  nothing  7    There 


can  be  no  possil)le  reason  for  making  him 
a  defendant.  Anson  v.  Anson,  20  Iowa, 
55.  A  mortgage  had  been  foreclosed,  and 
the  land  sold  under  the  decree.  A  sub- 
sequent mortgagee  had  not  been  made  a 
defendant  in  this  action.  He  now  brings 
this  suit  to  foreclose  his  own  mortgage, 
making  the  prior  mortgagee  and  the  pur- 
chaser at  the  former  foreclosure  sale  de- 
fendants, and  praying  to  redeem  as  against 
them.  Held,  that  his  rights  had  not  been 
cut  off,  and  that  he  miglit  redeem.  Dil- 
lon J.  said  (p.  58)  :  "  Under  these  circum- 
stances, the  principle  is  elementary  'and 
undisputed  that  the  second  mortgagee  is 
not  barred  of  his  right  to  foreclose  against 
the  mortgagor,  nor  of  his  right  to  redeem 
against  tlie  first  mortgagee,  or  his  assignee, 
or  the  purchaser  at  the  foreclosure  sale 
(citing  Ten  Eyck  v.  Casad,  15  Iowa,  524, 
and  other  cases  quoted  infra).  But  the  de- 
fendants contend  that  this  rule  lias  been 
altered  by  statute,  and  refer  to,  and  rely 
upon  the  act  of  1860,  cli.  114,  p.  148. 
Revision,  §  3664.  This  act  provides, 
"  that  in  all  cases  when  judgments  or 
decrees  are  rendered  by  any  of  the  courts 
of  this  State  upon  a  foreclosure  of  mort- 
gages upon  real  estate,  the  defendants, 
judgment  creditors,  and  other  creditors 
having  liens  upon  the  mortgaged  premises, 
shall,  in  case  of  the  sale  of  the  mortgaged 
premises  on  execution,  have  the  same 
time  to  redeem  and  the  same  rights  of 
redemption  as  in  cases  of  sales  on  ordinary 
judgments  at  law.  .  .  .  Viewed  in  the 
ligiit  of  the  occasion  of  its  passage,  it  is 
plain  that  the  legislature  do  not  intend  to 
enact  the  startling  innovation  and  unrea- 
sonable rule  that  a  subsequent  lien-holder, 
though  not  made  a  party,  would,  unless 
he  redeemed  within  the  time  limited,  be 
for  ever  barred  of  the  right."  He  goes 
on  to  show  that  this  statute  was  meant  to 
enlarge,  and  not  to  restrict,  riglits  of  re- 
demption. It  applies  only  to  subsequent 
creditors,  &c.,  who  have  been  made  parties, 
and  whose  rights  would  otherwise  have 
been  cut  off  by  the  sale.  It  allows  tlicin 
to  redeem,  notwithstanding  the  sale.  The 
conclusion  is,  that  the  prior  rule  as  to 
persons  not  made  parties  is  untouched  by 
this  statute.    Knowles  i;.  Rabhn,  20  Iowa, 


DEFENDANTS    IN    FORECLOSURE    SUITS. 


385 


primiiry  remedy  granted  by  the  action,  cannot  be  made.^     In  a 
few  cases,  however,  such  parties  have  been  spoken  of  as  projyer 


101.  If  a  subsequent  incumbrancer  is 
not  made  a  party,  liis  rifjlit  of  redemption 
is  unaffected  ;  but,  in  order  to  redeem,  lie 
must  pay  off  tlie  entire  mortijage  debt. 
Cliase  V.  Abbott,  20  Iowa,  154.  Every 
subseqvient  incumbrancer  must  be  made 
a  party  in  order  to  be  foreclosed  ;  also  the 
wife  of  tlie  mortgngor.  Street  v.  Beal, 
16  Iowa,  68.  A  subsequent  incumbrancer 
is  not  a  necessan/  defendant ;  omitting  to 
join  liim  does  not  vitiate  the  proceedings. 
But  he  must  be  made  a  de.'endant  to  cut 
off  liis  riglit  of  redemption.  In  redeem- 
ing, lie  must  pay  the  entire  mortgage 
debt.  Darlington  v.  Effey,  13  Iowa,  177. 
When  the  mortgagor  is  dead,  and  a  fore- 
closure suit  is  brought  against  his  heirs, 
his  administrator  is  a  proper  though  not 
a  necessary  party,  because  the  estate  may 
be  liable  for  a  deficiency,  and  lie  may 
have  a  defence  to  the  mortgage.  He  may, 
therefore,  intervene.  Johnson  v.  Rlonell, 
13  Iowa,  300.  After  the  mortgagor  has 
conveyed  the  equity  of  redemption,  he  is  a 
proper  but  not  a  necessary  party.  A  decree 
can  be  rendered  for  a  sale,  but  none  for 
a  deficiency  without  him.  Semple  v.  Lee, 
13  Iowa,  301.  The  mortgagor  and  the 
present  owner,  to  wii'un  he  had  conveyed 
the  entire  premises,  and  who  lia<l  assumed 
to  pay  the  mortgage  debt,  were  both  held 
proper,  but  neither  of  them  necessary 
defendants.  The  absurd  result  to  which 
this  decision  leads  is  spoken  of  infra,  in 
the  text  and  in  the  note.  Tarrott  v. 
Hughes,  10  Iowa,  459.  A  chattel  mort- 
gage was  executed  on  a  steam  engine. 
The  mortgagor  being  left  in  possession, 
placed  the  engine  in  a  mill  in  such  a  man- 
ner that  it  became  affixed  to  the  soil,  as 
was  alleged,  and  afterwards  gave  a  mort- 
gage on  the  land,  including  the  mill.  In 
an  action  to  foreclose  the  chattel  mort- 
gage, the  mortgagee  of  the  land  was  held 
to  be  a  proper  defendant,  and,  on  his  own 
application,  he  was  admitted,  on  the 
ground  that  his  rights  might  be  adjusted 
in  the  one  suit.  Suiter  v.  Turner,  10 
Iowa,  517.  A  failure  to  make  the  occu- 
pant of  mortgaged  premises  a  defendant 


in  a  foreclosure  suit  will  not  invalidate 
the  proceedings  as  to  the  actual  parties ; 
but  the  rights  of  the  occupant  will  not  be 
prejudiced  by  the  decree.  Ileimstreet  v. 
Winnie,  10  Iowa,  430.  The  only  question 
was,  whether  Casad,  a  subsequent  incum- 
brancer, was  a  necessary  party  defendant. 
Lowe  C.  J.  said  :  "  It  is  certainly  regular 
and  good  practice  to  make  all  persons, 
whether  senior  or  junior  incumbrancers, 
parties  in  a  foreclosure  proceeding,  for  the 
very  plain  reason  that  it  gives  stability 
and  security  to  the  purchaser's  title,  pre- 
vents a  multiplicity  of  suits,  and  tends  to 
secure  a  proper  distribution  of  the  pro- 
ceeds of  the  mortgaged  property  among 
the  claim-holders  according  to  the  priori- 
ties of  their  respective  liens.  But  we  are 
not  aware  that  it  has  ever  been  held  ab- 
solutely necessary.  It  is  not  essential 
that  prior  mortgagees  should  be  made 
parties,  because  their  interests  are  not, 
and  cannot  be,  touched  in  the  suit,  and 
are  paramount  to  the  party  foreclosing. 
Nor  is  the  making  of  the  subsequent 
mortgagees  parties  indispensable,  for  the 
reason  that  the  law  of  foreclosure  estab- 
lished by  the  code  not  only  does  not  re- 
quire it,  but  §  2088  seems  to  contemplate 
that  a  mortgage  may  be  foreclosed  with- 
out making  them  j)arties.  In  that  case, 
of  course,  they  would  not  he  barred  by 
the  decree,  the  general  policy  of  the  law 
being  that  no  one  shall  be  concluded 
without  giving  him  an  opportunity  to  as- 
sert and  protect  his  rights."  Kankin  v. 
Major,  9  Iowa,  297.  A  person  executed 
to  B.  two  notes,  —  one  at  six  months,  and 
the  other  at  twelve  months,  —  and  gave  a 
mortgage  to  B.  to  secure  them.  B.  as- 
signed the  second  note  to  R.,  and  B.  and 
R.  united  in  an  action  to  foreclose  the 
mortgage.  Held,  that  they  could  not 
thus  unite  as  plaintiffs,  because  the  in- 
debtedness had  been  severed,  and  the  de- 
mands are  distinct  and  separate.  The 
rights  of  all  can,  however,  be  protected  in 
one  action.  If  either  brings  an  action  to 
foreclose,  he  can  make  the  other  a  de- 
fendant,  and   the  latter   can    assert   his 


1  Hall  V.  Nelson,  23  Barb. 


;  14  How.  Pr.  32;  Cord  v.  Hirsch,  17  Wise.  403. 
25 


386 


CIVIL  REMEDIES. 


defendants  merely.^     This  latter  view  is,  in  my  opinion,  clearly 
incorrect,  since  it  leads  to  the   inevitable  conclusion  that  there 


right  by  an  answer  in  tlie  nature  of  a  cross 
bill,  and  tlie  decree  will  award  the  pro- 
ceeds to  both.  Under  the  Iowa  law,  the 
proceeds  are  to  be  applied  to  the  payment 
of  the  (irst  note  in  fidl,  and  the  surplus  to 
the  second  note.  Crow  v.  Vance,  4  Iowa, 
434  ;  Vcach  v.  Schaup,  3  Iowa,  1U4  ;  Bates 
V.  Kuddick,  2  Iowa,  423.  Subsequent 
incumbrancers  who  are  not  made  parties 
are  not  concluded  by  the  decree  and  sale. 
The  last-named  case  contains  an  exhaust- 
ive discussion  of  the  doctrine.  Sands  r. 
Wood,  1  Iowa,  263.  A  person  executed  a 
note  and  a  mortgage  to  secure  it.  The 
paj'ee  indorsed  the  note,  and  assigned  the 
'  mortgage  to  the  plaintiff,  who  brings  a 
foreclosure  action  against  the  mortgagor 
and  the  indorser  (the  mortgagee),  and 
prays  judgment  against  botli  for  the 
amount  of  the  note  Held  improper. 
The  action  to  foreclose  should  have  been 
against  the  mortgagor  alone.  An  action 
on  the  note  might  be  brought  against  both 
the  maker  and  the  indorser  ;  but  the  two 
actions  cannot  be  joined.  Murray  v. 
Catlett,  4  Greene  (la.),  108.  A  mort- 
gagor wlio  has  conveyed  his  equity  of 
redemption  is  not  a  necessary  defendant. 
Williams  v.  Meeker,  2'.)  Iowa,  21)2,  294. 
Same  point  as  in  the  last  case.  The  de- 
fendant, who  is  owner  of  the  premises, 
cannot  object  that  the  mortgagor  has  not 
been  made  a  party  defendant.  Powell  v. 
Ross,  4  Cal.  197.  Wiien  a  mortgage  of 
husband's  land  is  executed  by  iiim  and 
his  wife,  she  is  not  a  necessary  party  de- 
fendant in  a  ibreclosure  suit.  Her  joining 
in  the  mortgage  was  not  necessary  unless 
the  land  was  her  separate  property.  Tiiis 
decision  is  based  upon  the  local  law  of 
California,  which  is  quite  different  from 
the  common-law  doctrines  in  relation  to 
dower.  Belloc  v.  Rogers,  9  Cal.  123. 
When  a  mortgagor  has  conveyed  the 
land,   and    afterwards  dies,   his  adminis- 


trator is  a  necessary  party  if  the  plaintiff 
seeks  to  recover  a  judgment  for  a  defi- 
ciency ;  but  if  the  plaintiff  elects  to  rely 
upon  the  proceeds  of  the  mortgaged 
premises,  and  asks  no  sucli  judgment,  the 
administrator  is  not  a  necessary  defend- 
ant ;  citing  and  approving  Bigelow  v. 
Busli,  6  Paige,  34.5 ;  Harwood  v.  Marye, 
8  Cal.  580.  When  a  mortgagor  dies 
owning  the  land,  his  administrator  or  ex- 
ecutor is  a  necessary  defendant  in  Cali- 
fornia ;  the  heir  is  not  a  sufficient  party. 
In  California  the  land  goes  to  the  admin- 
istrator or  executor  as  well  as  the  personal 
property,  and  the  title  thereto  remains  in 
liim  until  the  estate  is  settled.  Hayward 
V.  Stearns,  39  Cal.  58,  60.  Subsequent 
incimibrancers  are  not  necessary  parties, 
although  their  rights  are  unaffected  by  the 
decree  unless  they  are  joined.  Davenport 
V.  Turpin,  43  Cal.  597,"  601.  The  title  of 
a  person  to  whom  tlie  mortgagor  had  con- 
veyed the  land  is  not  afiected  by  the 
decree  in  an  action  in  which  he  was  not 
made  a  party  defendant ;  citing  Carpentier 
V.  Williamson,  25  Cal.  161 ;  Schadt  v. 
Heppe,  45  Cal.  433,  437.  A  mortgage 
was  given  by  husljand  and  wife  on  land 
which  was  common  property.  The  hus- 
band died,  and,  under  the  peculiar  law  of 
California,  these  mortgaged  premises 
were  set  off  for  the  use  of  the  widow 
and  infant  child.  An  action  was  after- 
wards brought  to  foreclose  the  mort- 
gage, and  it  was  held  that  the  adminis- 
trator was,  under  the  circumstances, 
neitlier  a  necessary  nor  even  proper  party 
defendant.  The  premises  when  thus  set 
off  ceased  at  once  to  be  assets  of  the 
estate,  and  passed  beyond  all  control  of 
the  administrator  or  of  the  Probate  Court. 
The  i)resent  right  to  the  possession  of  the 
land  at  once  passed  to  the  widow  and 
child,  and  they  thenceforth  held  it  subject 
to  the  mortgage,  but  free  from  all  other 


•  Sumner    v.   Coleman,  20  Ind.  486;  was    not   a  vecessanj   one.      The   absurd 

Seniple  v.  Lee,  13  Iowa,  304.     In  the  last  result  was  thus  reached  that  there  was  no 

case,  the   mortgagor   and    the   owner  to  neccssarii  defendant;  for  if  these  persons 

whom  the  land  had  been  conveyed  were  were  only  jiroixr   ones,    they    might   be 

both  joined,  and  the  court  said  the  owner  omitted,   and  the  suit  go  on  without  any 

was  a  jiroper  party,  and  the  mortgagor  defendant. 


DEPENDANTS   IN    FORECLOSURE   SUITS. 


387 


may  be  an  action  without  any  necessary  defendant.  If,  however, 
the  mortgagor  has  conveyed  away  only  a  portion  of  the  premises 
and  remains  owner  of  tlie  residue,  the  grantee  of  the  part  so  con- 
veyed is  not  a  necessary  defendant.  The  suit  against  the  mort- 
gagor alone  is  not  a  nullity ;  there  is  a  title  in  him  for  the  decree 
of  sale  to  act  upon  ;  but  the  rights  of  the  grantee  would  be  un- 
affected.^ It  follows  as  an  evident  corollary  from  the  proposition 
just  stated,  that  the  mortgagor  who  has  conveyed  away  the  whole 

claims  against  the  estate.  For  the  pur-  cut  off  tlieir  interests,  as  a  wife,  a  subse- 
pose  of  a  mere  foreclosure,  tlierefore,  the  quent  purcliaser,.  or  subsequent  mort- 
administrator  was  no  longer  a  necessary  gagee.  They  are  not  indispensable 
or  proper  part\- to  the  action.  Ordinarily,  parties.  The  action  is  good  without 
it  will  be  remembered,  the  administrator  them  ;  and  the  only  effect  of  their  ab- 
is  an  indispensable  party,  since  the  title  to  sence  is  that  their  interests  are  not  af- 
the  lands,  as  well  as  to  the  ciiattels,  vests  fected  by  the  proceeding.  Such  was  the 
in  him,  and  not  in  the  heir,  until  the  estate  condition  of  Mrs.  W.  [the  wife  in  ques- 
is  settled  and  distriljulion  made.  Morris  tion],  even  if  her  husband  was  a  subse- 
V.  Wheeler,  45  N.  Y.  708.  In  an  action  to  quent  purchaser  or  owner."  This  decision 
foreclose  a  mortgage  against  the  owner,  is  entirely  inconsistent  with  the  case 
who  was  a  subsequent  grantee,  he  set  up  last  before  cited.  While  the  opinion  of 
in  his  answer  that  a  certain  named  person  Mr.  Justice  Hunt,  as  to  subsequent  in- 
was  a  judginent  creditor  of  a  former  owner  cumbrancers,  is  entirely  correct,  he  has 
of  the  mortgaged  premises,  that  his  jiidg-  fallen  into  an  obvious  error  vvhen  he  de- 
ment was  a  lien  thereon,  and  that  he  had  clares  that  the  mortgagor  is  always  a 
not  been  made  a  party.  The  court  held  necessary  party.  Brundage  v.  Domestic 
that  such  judgment  creditor  was  a  neces-  and  For.  Miss.  Soc,  60  Barb.  204.  In  a 
sary  party,  and  that  a  decree  of  foreclos-  foreclosure  action,  a  person  who  claims  in 
lire  ought  not  to  be  rendered  in  favor  of  the  opposition  to  the  title  of  the  mortgagor 
plaintiff  because  he  liad  not  heen  made  a  cannot  be  made  a  defendant  so  as  to  litL- 
defendant  (!)  This  is  certainly  a  most  gate  his  title  and  settle  it.  Leggett  v. 
extraordinary  decision  ;  it  is  in  direct  Mutual  Life  Ins.  Co.,  64  Barb.  2o,  36.  A 
conflict  with  other  decisions  made  by  the  mortgagor  died.  B3'  his  will,  after  certain 
same  court,  and  is  an  utter  confounding  legacies,  he  lefttherestandresidue,  includ- 
of  all  distinctions  between  necessary  and  ing  the  mortgaged  premises,  to  trustees  in 
proper  parties.  The  decision  is  so  clearly  trust  for  his  children  for  life,  remainder 
erroneous  that  it  can  only  he  regarded  as  in  fee  to  his  grandchildren.  In  a  suit 
an  inadvertence.  Koy  v.  Whittaker,  44  to  foreclose  the  mortgage,  the  trustees 
N.  Y.  505.  In  a  foreclosure  suit  against  were  made  defendants,  but  the  giand- 
the  mortgagor  and  a  subsequent  grantee  children  were  not.  Held,  that  the  grand- 
and  owner,  the  latter  set  up  in  his  answer,  children  were  necessary  parties  in  order 
among  other  defences,  that  his  wife,  who  to  cut  off  their  right  of  redemption  ;  the 
has  an  inchoate  dower  right  in  the  prem-  trustees  did  not,  and  could  not  represent 
ises,  is  not  a  party,  and  that  she  is  a  nee-  them.     Daly  v.  Burchell,  13  Abb.  Pr.  n.  s. 


essary  defendant.  The  answer  was  struck 
out  as  frivolous.  The  court,  per  Hunt  J., 
said  (p.  572) :  "  To  sustain  a  foreclosure 
suit  the  mortgagor  is  a  necessary  party, 
and  generally  the  only  necessary  one. 
Others  may  be  joined  if  it  is  desired  to 

1  Douglass  V.  Bishop,  27  Iowa,  '214,     the  entire  premises  are  conveyed  by  the 
216.     There  is  certainly  a  plain  distinc-     mortgagor, 
tion  between  this  case  and  the  one  where 


264,  268.  After  the  mortgagor  has  con- 
veyed away  the  land,  he  is  not  a  neces- 
sary defendant ;  and  if  he  dies,  his  heirs 
are  not ;  citing  Baton  v.  Murray,  6  Paige, 
474  ;  Van  Nest  v.  Latson,  19  Barb.  604. 


388  CIVIL    REMEDIES. 

of  the  inorto-arred  premises  is  no  longer  a  necemary  party  defend- 
ant in  a  foreclosure  action,  that  is,  he  is  not  indispensable  to  the 
rendition  of  a  simple  judgment  of  sale,  if  no  decree  for  a  defi- 
ciency is  asked.'  He  is  however  an  eminently  proper  party;  and 
if  the  plaintiff  wishes  a  personal  judgment  for  any  deficiency 
which  may  arise  upon  the  sale,  he,  or  his  personal  representative 
if  he  is  dead,  is  a  necessary  party,  and  may  defend  the  action,  and 
defeat  the  same  by  any  competent  defence  which  he  may  estab- 
lish.^ The  decisions  do  not  make  any  distinction  between  the 
case  in  which  the  mortgagor  has  simply  conveyed  the  land  incum- 
bered by  the  mortgage,  and  that  in  which  the  grantee  has  assumed 
to  pay  tiie  mortgage  debt,  and  in  fact  there  is  and  can  be  no  such 
distinction.  Whatever  arrangement  the  mortgagor  may  make 
with  his  grantee,  he  cannot  by  his  own  act  free  himself  from  his 
liability  to  the  holder  of  the  mortgage  ;  he  will  therefore  remain 
liable,  either  as  principal  debtor  or  as  surety  for  the  grantee  who 
has  assumed  the  payment,  and  will  continue  subject  to  a  judg- 
ment for  a  deficiency.'^ 

§  337.  The  same  principle  is  of  universal  application,  and  em- 
braces all  successive  grantees  of  the  premises  who  have  made 
themselves  personally  liable  for  the  mortgage  debt.  Thus,  if  the 
mortgagor  conveys  the  premises  to  A.,  who  takes  them  simply 
burdened  by  the  lien,  but  does  not  assume  and  agree  to  pay  the 
debt,  and  A.  afterwards  conveys  in  the  same  manner  to  B.,  Avho 
again  conveys  to  C.  who  is  the  owner  when  the  foreclosure  is 
commenced,  A.  and  B.  are  plainly  neitlier  necessary  nor  proper 
parties ;  the}^  have  retained  no  interest  in  the  land,  and  were 
never  personally  responsiljle  for  the  debt.  If,  on  the  other  hand, 
in  this  series  of  conveyances,  A.,  B.,  and  C.  had  each  in  turn 
assumed  and  agreed  to  pay  the  mortgage  debt,  C.  would  be  the 
necessary  defendant  in  any  action  to  foreclose,  because  he  is 
the  owner  of  the  land.  The  mortgagor,  A.  and  B.  would  be 
proper  defendants,  because  they  are  personally  liable  for  the  debt. 
.  The  mortgagor's  liability  was  created  by  the  original  instrument, 
bond,  note,  or  otherwise,  and  he  did  not  become  freed  therefrom 

1  Drury  r.  Clark,   16  How.    Pr.  424;  Lee,    13  Iowa,  304;  Murray   v     Catlett, 

Delaplaine  r.   Lewis,   I'J   Wise.  470,  and  4    Greene    (la.),   108;    Belloc  v.  Kojiers, 

cises  cited;  Stevens  v.  Campbell,  21  Ind.  9  Cal.  123;  Williams  v.  Meeker,  2'j  Iowa, 

471;   Burkham  v.   Beaver,   17   Ind.  367;  292,294;  Story,  Eq.  PI.  §  197. 
Huston  V.  Strinj;liani,  21  Iowa,  36  ;  John-  -'  See  cases  cited  in  last  note, 

son  V.  Monell,  13  Iowa,  300;   Semple  v.  ^  See  same  cases  last  cited. 


DEFENDANTS    IN    FORECLOSURE    SUITS.  389 

because  others  also  assumed  it.  A.'s  and  B.'s  liability  was  created 
by  their  voluntary  assumption,  and  having  been  once  incurred,  it 
could  not  be  thrown  off  without  the  consent  of  the  creditor.  If 
the  plaintiff  therefore  demands  a  judgment  for  deficiency,  and 
desires  to  make  his  security  as  complete  as  possible,  he  may  join 
the  mortgagor  and  A.  and  B.  as  codefendants  in  the  suit  to  fore- 
close.^ If  the  mortgagor  has  convej^ed  his  entire  interest  and 
afterwards  dies,  his  administrator  or  executor  must  be  joined  as  a 
defendant  if  a  judgment  for  deficiency  is  prayed,  and  ma}^  be 
admitted  to  contest  the  validity  of  the  mortgage  and  of  the  debt 
it  is  given  to  secure.^  It  is  even  said  by  some  courts  that  the 
personal  representative  of  the  deceased  mortgagor  is  a  necessary 
party  defendant  with  the  heirs  and  widow.^  When  the  mort- 
gagor dies  intestate  owning  the  land,  or  when  any  subsequent 
owner  thus  dies,  his  heirs  are  indispensable  parties  ;  and  if  the 
objection  to  their  nonjoinder  has  not  been  taken,  the  court  will 
of  its  own  motion  order  them  to  be  brought  in  as  defendants. 
No  effectual  decree  of  sale  can  be  made  without  them.^ 

§  338.  In  California,  the  personal  representative  of  a  deceased 
person  succeeds  at  once  to  all  lands  as  well  as  personal  property ; 
the  title  vests  in  him  for  purposes  of  administration;  and  if  an 
owner  of  mortgaged  land  dies,  his  executor  or  administrator  is 
therefore  an  indispensable  party  defendant.^  A  mortga^'-or  having 
conveyed  the  land  to  assignees  in  trust  for  the  benefit  of  cred- 
itors, judgment  creditors  whose  judgments  were  recovered  subse- 
quent to  such  assignment,  and  which  were  therefore  not  direct 
liens  on  the  land,  were  held  to  be  proper  parties  defendant  in  an 
action  brought  to  foreclose  the  mortgage  against  the  mortgagor 
and  the  trustees.  These  trustees  having  suffered  a  default,  the 
judgment  creditors  were  permitted  to  intervene  and  to  contest  the 

'  See  same  cases  last  cited.  §§  196,  200;  Dtincombe  v.  Hansley,  3  P. 

2  Huston  V.  Strinsrham,  21  Iowa,  36;  Wms.  333  (n.);  Fell  v.  Brown,  2  Bro.  C.  C. 
Darlington  v.  Effey,  13  Iowa,  177.  276  ;  Bradsiiaw  v.  Outram,  13  Ves.  234. 

3  Miles  i,'.  Smith,  22  Mo.  502.  If  the  ^  Muir  v.  Gibson,  8  Ind.  187;  Story's 
plaintiff  seeks  a  personal  judgment  for  a  Eq.  PI.,  §  196.  In  North  Carolina,  when 
deficiency,  the  personal  representative  of  the  mortgagee  dies,  his  heirs  are,  in  gen- 
a  deceased  mortgagor  is  of  course  a  nee-  eral,  necessary  parties  plaintiffs  or  defend- 
essary  defendant;  but  if  the  plaintiff  ants;  but  there  are  exceptions,  as  where 
demands  no  such  judgment,  and  is  con-  the  mortgagee  had  assigned,  and  died  in- 
tented  with  the  security  of  the  Ian  i  alone,  solvent,  leaving  non-resident  heirs  Ethe- 
it  seems,  the  personal  representative  is  ridge  v.  Vernoy,  71  N.  C.  184,  186,  187. 
not  a  necessary  party.    Story's  Eq.    PI.  5  Harwood  v.  Marye,  8  Cal.  580. 


390  CIVIL   REMEDIES. 

validity  of  the  mortgage  and  of  the  debt  which  it  secured  by 
setting  up  usury. ^  The  general  proposition  was  announced  by 
the  court,  that  the  cestuis  que  tninfent  are  proper  defendants  as 
well  as  tiie  trustees.  When  a  mortgage  was  given  to  secure  a 
note  payable  to  the  order  of  the  mortgagee,  and  the  latter  in- 
dorsed and  transferred  the  note  and  assigned  the  mortgage,  the 
assignee  cannot  maintain  an  action  against  the  mortgagor  and 
maker  of  the  note,  and  the  indorser  of  the  note  (the  mortgagee), 
to  foreclose  the  mortgage  and  to  obtain  judgment  against  both  for 
either  the  whole  amount  of  the  note  or  for  the  deficiency.  A 
legal  action  may  be  brought  against  both  on  the  note,  but  a  fore- 
closure must  be  against  the  mortgagor  alone.^  This  last  rule  is 
exactly  otherwise  in  Minnesota  by  virtue  of  an  express  statute. 
If  the  mortgage  debt  is  secured  by  the  obligation  of  any  person 
other  than  the  mortgagor,  he  may  be  joined  as  a  defendant  in  the 
foreclosure  suit,  and  a  judgment  for  deficiency  may  be  rendered 
against  him  alone,  or  jointly  with  the  mortgagor,  as  the  case  may 
be.3 

§  339.  The  special  provisions  in  the  codes  of  some  States  re- 
quiring the  assignor  of  a  thing  in  action  to  be  made  a  defend- 
ant under  certain  circumstances  in  a  suit  by  the  assignee,  affects 
the  general  doctrine  as  to  parties  in  foreclosure  actions  in  those 
States.  These  provisions,  it  will  be  remembered,  require  the 
assignor  to  be  made  a  party  "  when  the  thing  in  action  is  not 
assignable  by  indorsement,"  or  when  it  is  not  a  negotiable  instru- 
ment, or  when  the  assignment  is  not  expressly  authorized  by 
statute  so  as  to  transfer  the  legal  title  to  the  assignee.  It  has 
been  held  in  States  where  these  provisions  are  in  force,  that  if  a 
mortgage  is  given  to  secure  a  negotiable  note,  and  this  note  is 
transferred  in  the  usual  manner  by  indorsement,  although  there 
is  no  written  assignment  of  the  mortgage,  the  assignor  need  not 
be  made  a  defendant.  The  transfer  of  the  note  by  indorsement 
carries  with  it  the  title  to  the  mortgage,  and  the  assignee  thus 
becomes  legal  owner  of  both  b}'^  a  form  and  mode  of  transfer 
which  permits  the  action  to  be  brought  without  the  assignor  as  a 
party  defendant.*     On  the  other  hand,  if  the  mortgage  alone  is 

1  Union  Bank  v.  Bell,  14  Ohio  St.  200.  gagees  who   have   assigned   their   entire 

2  Sanils  V.  Wood,  1  Iowa,  2(53.  interest  are  not  necessary  parties.     Pul- 

3  Nichols  V.  Randall,  5  Minn.  304,  308.  len  v.  Heron  Min.  Co.,  71  N.  C.  567. 
*  Gower  v.  Howe,  20  Ind.  396.     Mort- 


DEFENDANTS    IN    FORECLOSURE    SUITS.  391 

assigned  by  a  written  transfer,  while  the  evidence  of  the  debt,  for 
example  a  bond,  is  merely  transferred  by  delivery,  the  assignor, 
who  might  be  the  mortgagee,  is  a  necessary  defendant  under  the 
provision  above  referred  to.^  This  decision  would  undoubtedly 
embrace  all  cases  where  the  instrument  which  is  the  principal 
evidence  of  debt,  whether  bond  or  negotiable  note,  unless  the 
latter  be  payable  to  bearer,  is  transferred  by  delivery  merely.  If 
a  note  secured  by  mortgage  is  payable  to  bearer,  so  that  the  legal 
title  will  pass  by  mere  delivery,  it  would  seem  the  assignor  need 
not  be  made  a  defendant.  Such  a  note  being  negotiable,  the  case 
falls  directly  within  the  language  of  the  provision  as  it  is  found 
in  several  codes. 

§  340.  When  a  mortgage  is  given  to  secure  a  series  of  notes 
made  by  the  mortgagor,  having  different  periods  of  time  to  run, 
as,  for  example,  one,  two,  and  three  years,  the  proceeds  of  the 
land  when  sold  upon  foreclosure  are  to  be  applied  to  the  payment 
of  these  notes  in  the  order  in  which  they  fall  due  ;  that  is,  the 
one  which  first  falls  due  is  to  be  paid  in  full,  and  the  surplus,  if 
any,  goes  to  the  payment  of  the  second,  and  so  on.  If  the  mort- 
gagee assigns  one  or  more  of  such  notes,  and  retains  the  others, 
or  if  the  notes  are  separately  assigned  to  different  persons,  the 
holders  cannot  unite  as  coplaintiffs  in  an  action  to  foreclose, 
because  the  debt  has  been  severed  and  their  interests  are  separate 
and  distinct.  Either  holder,  however,  may  bring  an  action  to 
foreclose,  and  may  make  the  other  holder  (or  holders)  defendant, 
and  such  defendant  can  set  up  his  rights  in  his  answer.  The  facts 
being  thus  presented,  the  decree  can  adjust  the  various  interests 
and  equities  of  the  different  holders,  and  apportion  the  proceeds 
according  to  the  priorities.  The  foregoing  rules  are  established 
in  lowa.^ 

§  341.  An  occupant  of  the  land,  that  is  a  person  in  possession 
without  alleging  the  title  to  be  in  himself,  is  not  a  necessary 
party  ;  his  rights,  however,  whatever  they  may  be,  will  not  be 
affected  by  the  decree  in  a  suit  to  which  he  was  not  made  a 
defendant.^     The  complaint  or  petition  must  allege  in  respect  of 

'  HoldridgG   i\  Sweet,    23    Ind.    118;  may  have  affirmative  relief  as  a  defendant, 

French  v.  Turner,  15  Ind.  59.     See  Kittle  it  is  difficult  to  see  any  substantial  rea- 

V.  Van  Dyck,  1  Sandf.  Cii.  76.  son  why  he  should  not  be  permitted  to 

'^  Rankin  v.   Major,  9  Iowa,  297.     It  join  as  plaintiff  in  the  first  instance, 
must    be    confessed    this    is    a   sacrifice  ^  Suiter  v.  Turner,  10  Iowa,  517. 

of  substance   to  form.     If   the  assignee 


392 


CIVIL    REMEDIES. 


every  person  made  a  defendant,  that  he  has  or  claims  some  inter- 
est adverse  to  the  phiiiitiff,  or  that  he  is  a  necessary  party  to  a 
coni])lete  settlement  of  the  questions  involved  in  tlie  controversy. 
A  defendant  concerning"  whom  no  such  averment  is  made,  may 
demur  for  want  of  sufficient  facts. ^  Parties  remotely  and  contin- 
gent 1}^  interested  in  the  result,  although  having  no  estate  in  or  lien 
on  the  land,  may  be  proper  defendants  in  order  to  the  protection 
of  their  rights  and  the  settlement  of  the  questions.^ 

§  342.  It  is  a  rule  universally  established  that  all  subsequent 
incumbrancers,  who  are  holders  of  general  or  specific  liens  on  the 
land,  whether  mortgagees,  judgment  creditors,  or  whatever  be 
the  nature  of  the  lien  if  it  can  be  enforced  against  the  land,  are 
not  necessary  parties  in  the  sense  that  their  presence  is  in- 
dispensable to  the  rendition  of  a  decree  of  sale  ;  but  they  are 
necessary  parties  defendant  to  the  recovery  of  a  judgment 
whicli  shall  give  to  the  purchaser  thereunder  a  title  free  from 
their  liens  and  incumbrances.  If  they  are  not  joined  as  defend- 
ants, their  rights  are  unaffected  ;  their  liens  remain  undisturbed 
and  continue  upon  the  land  while  in  the  hands  of  the  purchaser; 
and  they  retain  the  right  of  redemption  from  the  holder  of  the 
mortgage  before  the  sale,  and  from  the  purchaser  after  the  sale.^ 
It  is  not,  in  general,  considered  that  prior  incumbrancers  are  even 
proper  defendants,  for  as  their  liens  are  paramount  to  the  mort- 
gage, they  cannot  be  in  any  manner  affected  by  the  action  or  the 
decree  therein.*     It  is  said,  in  Iowa,  however,  that  they  are  proper 


1  Martin  v.  Noble,  29  Ind.  216.  It  is 
hot  necessar}'  to  allege  any  particular  in- 
terest. A  general  averment,  as  stated  in 
the  text,  is  sutiicient  in  respect  to  all  the 
defieiuhiuts,  except  those  against  whom  a 
personal  judgment  is  asked,  and  those  who 
are  owners  of  the  land.  See  Anthony  v. 
Nye,  oO  Cal.  401. 

-  See,  as  illustrations,  Johnson  v.  Brit- 
ton,  23  Ind.  105;  Parrott  v.  Hughes,  10 
Iowa,  4jy. 

3  Kay  c.  Wiiittaker,  44  N.  Y.  5G5, 
572;  IMoomer  v.  Sturges,  58  N.  Y.  168; 
liathhone  v.  Ilooney,  58  N.  Y.  463  ;  Gaines 
t'.  Walker,  16  Ind.  361;  Troctor  c.  Baker, 
15  Ind.  178;  Wright  v.  Howell,  35  Iowa, 
288,  2'.t3  ;  Neweonib  v.  Dewey,  27  Iowa, 
381 ;  Anson  v.  Anson,  20  Iowa,  55 ;  Ten 
Eyck  »'.  Casad,  15  Iowa,  524  ;  Knowles 
V.  Kablin,  20  Iowa,  101 ;  Chase  y.  Abbott, 


20  Iowa,  154  ;  Street ;.'.  Beal,  16  Iowa,  68; 
Heimstreet  v.  Winnie,  10  Iowa,  430; 
Veach  v.  Sehaup,  3  Iowa,  194  ;  Bates  v. 
Kuddick,  2  Iowa,  423;  Hay  ward  v. 
Stearns,  39  Cal.  58,  60;  Green  v.  Dixon, 
9  Wise.  582;  Story's  Eq.  PI.,  §  193; 
Haines  ;;.  Beach,  3  Johns.  Ch.  459;  Dra- 
per V.  Lord  Clarendon,  2  Vern.  518; 
Loniax  c.  Hide,  2  Vern.  185;  Godfrey  v. 
Chadwell,  2  Vern.  601  ;  Morret  v.  West- 
erne,  2  Vern.  663;  Uolleston  v.  Morton,  1 
Dr.  &  W.  171;  Besser  i'.  Hawthorne, 
3  Oreg.  129.  See,  however,  per  cmdra, 
Morris  i-.  Wheeler,  45  N.  Y.  708,— a 
clearly  erroneous  decision. 

■«  Story's  Kq.  I'l.,  §  193  ;  Rose  v.  Page, 
2  Sim.  471;  Delal.ere  v.  Norwood,  3 
Swanst.  144,  n  ;  Wakeman  v.  Grover,  4 
Paige,  23  ;  Parker  i-.  Fuller,  1  lluss.  & 
My.    656  ;    Hagan   v.   Walker,   14   How. 


DEFENDANTS   IN   FORECLOSURE   SUITS.  393 

parties.^  If  a  mortgage  is  given  by  a  husband  and  wife  on  lands 
which  are  her  separate  estate,  he  is  a  necessarj'-  codefendant  witli 
his  wife,  except  in  the  very  few  States  whose  statutes  exjiressly 
exclude  him  in  actions  having  reference  to  the  Avife's  separate 
property .2  If  he  united  with  the  wife  in  the  note,  bond,  or  other 
obligation  secured  by  the  mortgage,  he  is  a  proper  defendant  in 
Minnesota,  for  the  further  reason  that  a  judgment  for  deficiency 
may  be  rendered  against  him  in  the  action.^ 

§  343.  In  regard  to  the  necessity  or  propriety  of  joining  the 
wife  of  the  mortgagor,  or  of  any  subsequent  owner  of  the  mort- 
gaged premises,  there  is  some  conflict  among  the  decisions.  The 
solution  of  this  question  depends  mainly  upon  the  law  of  the 
State  regulating  the  wife's  right  of  dower.  In  most  of  the  States 
the  common-law  doctrines  as  to  dower  prevail  without  substantial 
alteration.  In  some,  however,  they  have  been  entirely  abro- 
gated, or  at  least  radically  changed.  As  at  the  common  law,  the 
wife's  inchoate  dower  right  attached  to  all  lands  owned  in  fee 
by  the  husband  during  the  marriage,  any  mortgage,  except  for 
purchase-money,  given  by  the  husband  in  which  the  wife  does 
not  join,  is  subject  to  her  dower  right.  When  such  a  mortgage 
—  not  for  purchase-money  —  is  executed  by  the  husband  alone, 
a  foreclosure  thereof  by  an  action  in  which  she  is  even  made  a 
party  defendant,  does  not  affect  her  rights ;  she  can  assert  her 
claim  to  dower  in  the  land  after  her  husband's  death  without 
redemption  ;  the  decree  as  to  her  is  a  mere  nullity.*  If  the  wife 
unites  with  her  husband  in  executing  the  mortgage,  her  dower 
right  becomes  subject  to  the  mortgage  lien  ;  in  other  words,  she 
is  entitled  to  dower  in  the  equity  of  redemption.  This  entitles 
her  to  redeem  upon  the  same  principle  that  any  other  junior 
incumbrancer  is  thus  entitled.  In  all  those  States  where  the 
common-law  doctrines  as  to  dower  have  not  been  abrogated,  the 
\yife  of  the  mortgagor  who  has  united  in  executing  the  mortgage, 
though  not  an  absolutely  necessary  party,  must  be  made  a  de- 
fendant in  order  to  cut  off  her  right  of  redemption.     If  not  a 

U.   S.  37;    llichards  v.  Cooper,  5  Beav.  i  Standish    v.   Dow,    21    Iowa,    3G3 ; 

304;  Arnolil  v.  Bainl>rigge,  2  DeG.,  F.  &  Heimstrcet  v.  AVinnie,  \0  Iowa,  430. 
J.   92;  Aiulsley  v.  Horn,  26   Beav.  195;  •-  Wo'fr.  Banning,  3  i\Iinn.  202,  204. 

1  DeG.,  F.  &  J.  226  ;  Person  v.  Merrick,  3  ihjd. 

5  Wise.  231;  AVright  i\  Bandy,  11   Ind.  ^  Moomey    v.    Maas,    22    Iowa,    380; 

398;  Rathbone  v.  Hooney,  58  N.  Y.  463.  Mercliants  Bank  v.  Tliomson,   55  N.  Y. 

7,11. 


394  CIVIL    REMEDIES. 

party  to  the  foreclosure  suit,  she  may  come  in  and  redeem  from 
the  purchaser.^  The  same  is,  of  course,  true  of  any  owner  to 
whom  the  hmd  or  a  part  thereof  has  l)een  conveyed,  subject  to 
tlie  mortgage,  and  who  remains  owner  at  the  time  of  commencing 
tlie  action  to  foreclose.'-^  It  is  not  necessary  to  set  out  the  wife's 
interest  in  detail  in  the  plaintiff's  pleading  ;  it  is  sufficient  to  aver 
in  the  usual  general  formula  that  she  has  or  claims  an  interest 
in  the  land  adverse  to  the  plaintiff.'^  A  contrary  rule  prevails 
in  a  few  States  in  which  it  is  held  that  the  wife,  under  the  cir- 
cumstances mentioned,  need  not  be  made  a  defendant."*  This 
ruling  must  be  based  upon  the  local  law  of  dower  radically  dif- 
ferent from  the  common  law. 

§  344.  There  is  a  marked  conflict  in  the  decisions  defining  the 
wife's  right  under  a  purchase-money  mortgage.  One  theory 
holds  that  the  legal  position  of  a  wife  whose  husband  has  exe- 
cuted a  i^urchase-money  mortgage  in  which  she  did  not  unite,  is 
exactly  the  same  as  that  of  a  wife  who  has  united  with  her  hus- 
band in  executing  a  mortgage  not  given  for  purchase-money. 
The  lien  of  the  mortgage  is,  of  course,  paramount  to  the  dower 
interest,  but  she  still  has  a  right  of  redemption,  and,  in  order  to 
cut  this  off,  she  must  be  made  a  defendant  in  the  foreclosure 
action.^  The  same  rule  also,  applies  to  the  wife  of  the  person  to 
whom  the  land  or  a  part  of  it  has  been  conveyed,  subject  to  a 
purchase-money  mortgage,  and  who  is  owner  at  the  time  of  the 
foreclosure.^  The  other  theory  denies  that  the  wife  whose  hus- 
band executes  a  purchase-money  mortgage  in  which  she  does  not 
join,  has  any  interest  in  the  land,  or  any  right  of  redemption. 
According  to  this  view,  she  need  not  be  made  a  defendant  in  the 
action  to  foreclose,  and  is  cut  off  by  a  decree  and  sale,  although 
omitted  as  a  party.'  When  a  trustee  of  a  married  woman  pur- 
chased lands  in  trust  for  her,  and  gave  a  purchase-money  mort- 
gage therefor,  it  was  held,  in  Nevada,  that  the  wife  and  her  hus- 

1  McArthur  i'.  Franklin,  15  Ohio   St.  »  Anthony  v.  Nye,  30  Cal.  401. 

485  ;  16  ib.  193  ;  Ciiambers  v.  Nicholson,  <  Thornton  v.  Pigg,  24  Mo.  249 ;  Rid- 

30  Ind.   349;  Chase  y.  Abbott,  20  Iowa,  dick   v.   Walsh,    15   Mo.   538;   Powell  v. 

154  ;  Anthony  v.  Nye,  30  Cal.  401 ;  Mills  Ross,  4  Cal.  197.     This  last  case  cannot 

V.  Van  Voorhies,  20  N.  Y.  412.     For  the  be  reconciled  with  Anthony  u.  Nye,  .s"/>ra. 

peculiar     law    of    North     Carolina,    see  ^  Mills  v.  Van  Voorhies,  20  N.  Y.  412. 

Creecy  u.  Pearce,  69  N.  C.  67  ;  Etheridge  ^  Ibid. 

V.  Vernoy,  71  N.  C.  184,  185-187.  ^  Fletcher  v.  Holmes,  32  Ind.  497,  per 

'^  Watt  V.   Alvord,  25  Ind.   533,  and  Elliott  J. ;  Etheridge  y.  Vernoy,  71  N.  C. 

cases  last  cited.  184-186. 


DEFENDANTS    IN    FORECLOSURE    SUITS.  '  395 

band  were  both  necessary  defendants  in  an  action  brought  to 
foreclose  the  mortgage.^ 

§  345.  Under  the  hiw  of  California  in  respect  to  homesteads,  it 
is  held  that  the  husband  and  wife  must  both  join  in  a  mortgage 
of  the  homestead  in  order  that  it  should  have  any  validity  as 
against  either;  and  of  course  the  wife  is  a  necessary  defendant  in 
an  action  to  foreclose  such  a  mortgage  in  which  she  has  joined.^ 
In  an  action  to  foreclose  a  mortgage,  a  person  who  sets  up  a 
claim  to  the  land  adverse  and  paramount  to  the  title  of  the  mort- 
gagor, and  Avho  therefore  denies  the  efficacy  of  the  mortgage 
lien,  cannot  properly  be  joined  as  a  codefendant  by  the  plaintiff. 
Such  an  adverse  claim  to  the  land  in  opposition  to  the  mortgage 
cannot  be  tried  in  the  equitable  action  to  foreclose.  So  far  as 
mere  legal  rights  are  concerned  in  such  an  action,  the  only  proper 
parties  are  the  mortgagor  and  the  mortgagee,  and  those  who 
have  acquired  rights  under  them  subsequent  to  the  mortgage. 
The  mortgagee  or  holder  of  the  mortgage  cannot  make  one  who 
claims  prior  and  adversely  to  the  title  of  the  mortgagor  a  de- 
fendant for  the  purpose  of  trying  the  validity  of  his  adverse 
claim. ^  In  Iowa,  a  trust-deed  of  land  or  of  chattels  intended  as 
security  for  a  debt,  is  by  statute  regarded  as  a  mortgage,  and 
may  be  foreclosed  by  action  in  the  same  manner  as  a  mortgage.* 
A  subsequent  incumbrancer,  as,  for  example,  a  mortgagee,  who 
has  not  been  made  a  party  to  the  foreclosure  of  a  prior  mortgage, 
may  redeem  the  land  from  the  sale,  and,  in  his  action  to  compel 
the  redemption,  he  should  make  the  mortgagor  and  his  prior 
mortgagee,  and  the  purchaser  at  the  sale  and  his  grantees,  if  any, 
the  parties  defendant.^  The  grantee  of  the  purchaser  is  an  in- 
dispensable defendant  in  such  an  action  ;  and  if  his  omission  is 

1  Mavrich  v.  Grier,  3  Nev.  52.    And         ^  Eagle  Fire  Ins.  Co.  v.  Lent,  6  Paige, 

when    mortgaged    land    is   conveyed   in  637,   per   Walworth    Chan.  ;    Corning   v. 

trust,  or  vested  in  trustees,  the  cestuis  que  Smith,  6  N.  Y.  82;  Palmer  u.  Yager,  20 

trnstent  are  necessary  defendants  in  a  suit  Wise.   91,  103,  per  Dixon  C.  J. ;  Peltou 

to  foreclose.     Clark  v.  Reyburn,  8  Wall.  v.  Farmin,  18  Wise.  222. 
318;  Faithful  w.  Hunt,  3  Anst.  751 ;  Cal-  *  Darlington   v.  Effey,   13  Iowa,  177. 

verley  v.  Plielp,  6  Mad.  229;  Osbourn  v.  Trust-deeds  appear  to  be  used  in  place  of 

Fallows,  1  R.  &  M.  741 ;  Newton  v.  Earl  mortgages  in  several  other  of  the  West- 

Egmont,   4  Sim.   574,  584  ;  5  Sim.  ISO,  ern  States. 

135  ;  Coles  v.  Forrest,  10  Beav.  552,  557  ;  ^  Anson     v.    Anson,    20     Iowa,     55  ; 

Goldsmid  y.  Stoneliewer,  9  Hare  App.  38 ;  Knowles  u.  Rablin,  20  Iowa,  101;  Street 

Story's  Eq.  PI.,  §§  206,  207.  v.  Beal,  16  Iowa,  68  ;  Burnap  v.  Cook,  16 

"  Revalk  v.  Kraemer,  8  Cal.  66  ;  Marks  Iowa,  149. 
V.  Marsh,  9  Cal.  96 ;  Moss  v.  Warner,  10 
Cal.  296 ;  Sargent  v.  Wilson,  5  Cal.  504. 


396  CIVIL   REMEDIES. 

properly  objected  to  by  the  actual  defendant,  the  action  must 
fail.i 

§  346.  III.  Creditors'  Actions  ;  and  Actions  by  or  on  Behalf  of 
Creditors  to  set  aside  Fraiidulent  Transfers  of  their  Debtors.  It 
is  not  within  the  scope  of  this  work  to  inquire  into  the  nature  of 
creditors'  suits,  nor  to  discuss  the  question  when  and  under  what 
circumstances  they  may  be  maintained.  My  only  present  con- 
cern is  with  respect  to  the  proper  selection  of  parties  defendant, 
whenever  the  actions  themselves  may  be  properly  brought.  The 
general  purpose  of  a  creditor's  suit  proper  is  to  reach,  at  the 
instance  of  a  judgment  creditor  whose  legal  remedies  of  judg- 
ment and  execution  thereon  have  been  exhausted,  the  assets  of 
the  judgment  debtor,  which,  either  by  reason  of  their  intrinsic 
nature,  or  by  reason  of  their  transfer  alleged  to  have  been  fraud- 
ulent as  against  the  creditor,  are  or  have  been  placed  beyond  the 
reach  of  an  execution  at  law,  and  which  are  therefore  denomi- 
nated equitable  assets.  Certain  species  of  property,  as,  for  ex- 
ample, things  in  action,  although  in  the  ownersliip  of  the  debtor, 
cannot  be  seized  on  execution.  The  distinctive  feature  of  the 
action,  however,  is  to  reach  land,  and  sometimes  chattels,  wdiich 
the  debtor,  having  owned  by  a  legal  title,  has  transferred  to 
some  grantee  or  assignee  in  fraud  of  his  creditors  ;  or  to  reach 
such  land,  and  sometimes  personal  property,  the  legal  title  to 
which  stands,  and  always  has  stood,  in  other  parties,  while  by 
reason  of  alleged  facts  the  equitable  ownership,  at  least  so  far 
as  the  creditors  are  concerned,  is  held  by  the  debtor  himself,  and 
the  property  is  thus,  as  is  alleged,  liable  to  be  taken  and  applied 
to  the  discharge  of  the  creditor's  demands.  '  Under  what  circum- 
stances a  transfer  of  property  is  fraudulent  as  against  the  cred- 
itors, or  the  equitable  ownership  is  held  by  the  debtor  while  the 
legal  title  is  vested  in  another,  it  is  not  now  the  place  to  inquire. 
Assuming  that  such  circumstances  exist,  and  that  when  they 
exist  an  action  may  be  maintained  by  the  judgment  creditor 
whose  legal  remedies  are  exhausted,  to  reach  the  property  and 
have  it  applied  in  some  manner  to  the  payment  of  his  demands, 
it  may  be  asked.  Who  should  be  made  parties  defendant  in 
sucli  an  action  ?     The  answer  to  this  question  is  plain,  and  the 

1  Winslow  !;.  Clark,  47  N.  Y.  261,  263;  for  fraud,  tlie  purcliaser  is  a  necessary 
citing  Dias  v.  Merle,  4  Paige,  259.  And  defendant.  Wilson  v.  Bell,  17  Minn.  61, 
in  an  action  to  set  aside  a  foreclosure  sale    64. 


DEFENDANTS    IN    CREDITORS'    SUITS.  397 

rule  has  been  well  established,  depending  as  it  does  upon  the 
most  evident  principles  of  equity  jurisprudence.  The  creditor's 
suit,  properly  so  called,  and  which  has  been  thus  described  in 
general  terms,  should  not  be  confounded  Avith  actions  that  cred- 
itors ma}^  sometimes  bring,  based  upon  the  law  of  trusts  and  the 
right  of  a  cestui  que  trust  to  compel  the  performance  of  his  duty 
by  a  trustee. 

§  347.  In  an  action  b}'^  a  judgment  creditor  to  reach  the  equi- 
table assets  of  the  debtor  in  his  own  hands,  or  to  reach  property 
which  has  been  transferred  to  other  persons,  or  property  which  is 
held  by  other  persons  under  such  a  state  of  facts  that  the  equi- 
table ownership  is  vested  in  the  debtor,  the  judgment  debtor  is 
himself  an  indispensable  party  defendant,  and  the  suit  cannot  be 
carried  to  final  judgment  without  liim.  In  some  cases,  as  when 
the  propert}^  has  been  assigned  at  different  times  to  different  as- 
signees, or  is  held  by  different  legal  owners,  who  are  all  made 
codefendants,  he  is  the  very  link  Avhich  unites  them  all  together, 
the  common  centre  to  which  they  are  all  connected,  and  it  is 
because  he  is  a  party  defendant  that  they  can  all  be  joined  in 
one  action  as  codefendants.^  Even  if  the  objection  to  his  non- 
joinder be  not  taken  by  the  actual  defendants,  the  court  will  on 
its  own  motion  order  him  to  be  brought  in.^  If  the  judgment 
debtor  himself  is  dead,  his  administrator  or  executor  is  an  indis- 
pensable defendant  ;^  and  if  the  objection  be  taken  for  the  first 
time  in  the  appellate  court,  the  cause  will  be  remanded  in  order 
that  he  may  be  added  as  a  defendant.*  When,  however,  the 
debtor  conveyed  his  land  to  A.  for  the  purpose  of  a  second  con- 
veyance to  his  own  wife  in  b^aud  of  his  creditors,  which  second 
conveyance  was  made,  and  the  debtor  afterwards  died,  it  was 
held  that  his  heirs  were  neither  necessary  nor  proper  parties  to 
the  creditor's  action  brought  to  set  aside  these  conveyances. 
"  The  conveyance  of  their  ancestor,  though  fraudulent,  concludes 
them,  and  effectually  cuts  off  all  their  interest  in  the  property."  ^ 


1  Lawrence    v.  Bank  of  tlie  Republic,  was  said  that  a  decree  witliout  his  pres- 

35   N.    Y.    320;   Shaver  v.   Brainard,  29  ence  is  impossible. 

Barb.  25  ;  Wallace  v.  Eaton,  5  How.  Pr.  -*  Alexander  I'.Quigley,  2  Duvall  (Ky.), 

99;  Logan  i-.  Hale,  42  Cal.  (aiS ;  Allison  300;  Postlewaite  v.  Howes,  3  Iowa,  365; 

V.   Weller,  6  N.  Y.  Sup.   Ct.  291 ;     Van-  Coates  i'.  Day,  9  Mo.  315. 
derpoel    v.   Van    Valkenburgh,    6   N.   Y.  *  Postlewaite  v.  Howes,  3  Iowa,  365. 

190.  5  Harlin  v.  Stevenson,  30  Iowa,  371, 

i2  Shaver  v.  Brainard,  29  Barb.  25.     It  375. 


398  CIVIL    REMEDIES, 

§  348.  If  the  object  of  the  action  be  to  reach  property  which 
has  been  assigned  by  the  debtor,  the  assignee  is  a  necessary  party 
defendant,  even  if  he  be  a  non-resident  of  the  State  ;  ^  and  on  the 
same  principle,  if  the  pLaintiff  seek  to  reach  property  of  which  the 
legal  title  is  in  a  third  person,  but  the  equitable  ownership  of 
which  is  alleged  to  be  in  the  debtor,  such  holder  of  the  legal  title 
must  be  a  defendant.^  When  the  debtor  conveyed  land  to  a 
third  person  with  the  puri)ose  that  such  person  should  at  once 
convey  the  same  to  the  debtor's  wife,  which  second  conveyance 
was  forthwith  made,  it  was  held,  in  an  action  against  the  debtor 
and  his  wife  to  reach  the  land  in  her  hands,  that  the  first  grantee 
was  a  necessary  part}'"  defendant.^  A  debtor  fraudulently  con- 
veyed land  to  A.,  and  took  back  a  purchase-money  mortgage 
which  he  assigned  to  B.  In  an  action  to  set  aside  the  convey- 
ance, or  to  reach  the  mortgage,  it  was  held  that  the  debtor  and 
both  A.  and  B.  were  proper  and  necessary  parties  defendant.* 

§  349.  When  the  action  is  brought  for  either  of  these  objects, 
if  the  debtor  has  at  different  times  assigned,  in  alleged  fraud  of 
his  creditors,  different  parcels  of  his  property  to  different  assignees, 
or  if  different  parcels  of  })roperty  are  held  by  different  persons 
in  alleged  fraud  of  the  debtor's  creditors,  so  that  the  equitable 
ownership  is  claimed  to  be  vested  in  him,  all  of  these  assignees, 
or  all  of  these  holders  of  the  legal  title,  may  be  joined  with  the 
debtor  as  codefendants  in  one  action.^  The  reason  given  for  this 
rule  permitting  separate  assignees  or  holders  of  the  legal  title  to 
be  joined,  although  they  take  by  different  conve3'^ances  and  at 
different  times,  is,  "  that  they  all  have  a  common  interest  cen- 
tiing  in  the  point  at  issue  in  the  cause  ;  so  that,  while  the  title 
to  one  piece  of  property  is  in  one  defendant,  and  the  title  to  some 
other  distinct  piece  is  in  another  defendant,  yet  these  various 
titles  were  taken  and  are  now  held  for  a  common  purpose,  and  to 

1  Gray  v.  Sclienck,  4  N.  Y.  4G0.  Land  in  fraud  of  his  creditors,  and   tlie 

2  Ogle  V.  Clougli,  2  Duv.  (Ky.)  145.         grantee  had  executed  a  mortgage  tiiereon, 
'  Bennett   r.    McGuire,    5   Lans.  183,     the  mortgagee  was  held  a  necessary  de- 

188.     Tiie  necessity  of  making  this  gran-  fendant  in  a  creditor's  suit  to  set  aside 

tee  a  defendant  is  not  apparent.     It   is  tiie   conveyance.     Copis  v.  Middleton,  2 

true,  his  deed  is  sought  to  be  set  aside,  Mad.  410. 

but  he  lias  no  interest  whatever  in  tlie  re-  ^  Morton  i'.  Weil,    11  Abb.   Pr.  421  ; 

suit;  all  title  has  passed  out  of  him,  and  Eeed  v.   Stryker,  12  Abb.  Pr.  47  ;  Jacot 

he  cannot  be  affected   by  the  judgment,  v.   Boyle,   18   How.   Pr.    lOtJ ;   Hamlin   v. 

See  Spicerf.  Hunter,  14  Abb.  Pr.  4.  Wrigiit,  28  Wise.  491  ;  Wlnslow  i-.  Dous- 

*  Foster  v.    Townshend,  12  Abb.  Pr.  man,  18  Wise.  456;  North  v.  Bradway,  9 

N.  8.  4G9.     When  a  debtor  had  conveyed  Minn.  183. 


DEFENDANTS    IN    ADMINISTRATION   SUITS.  399 

accomplish  the  same  fraudulent  end.  All  are  privy  to  have  been 
concerned  in  acts  tending  to  the  same  illegal  result.  The  mat- 
ters are  not  distinct,  but  are  in  truth  all  connected  with  the  same 
fraudulent  transaction  in  which  all  the  defendants  have  partici- 
pated.^ 

§  350.  In  an  action  brought  by  or  on  behalf  of  a  judgment 
creditor,  to  reach  a  fund  in  the  hands  of  an  express  trustee  for 
the  debtor,  such  debtor  is  a  necessary  defendant,  and  should  be 
joined  with  the  trustee  ;  he  is  the  person  directly  interested  in 
the  fund,  and  the  one  to  be  directly  affected  by  the  judgment.^ 
When  a  creditor's  suit  was  brought  to  reach  property  fraudulently 
transferred  by  the  debtor,  and  the  alleged  fraudulent  transfer 
was  consummated  through  the  means  of  a  third  person,  who  in 
good  faitli  received  a  conveyance  of  the  property  in  trust  for  the 
alleged  fraudulent  grantee,  and  who  subsequently  conveyed  the 
same  to  such  grantee  in  accordance  with  the  trust,  such  third 
person  was  held  not  to  be  a  proper  defendant  ;  there  was  simply 
no  cause  of  action  against  him,  because  he  was  free  from  any 
fraudulent  intent. ^ 

§  351.  IV.  Actions  relating  to  the  U.ftates  of  Deceased  Persons  ; 
in  which  Heirs,  Next  of  Kin,  and  Personal  Representotives  are 
Parties.  The  "  administration  suit "  in  chancery,  by  means  of 
which  the  estates  of  deceased  persons  are  usuall}'  settled  in  Eng- 
land, is  uncommon,  if  not  entirely  unknown,  in  the  United  States. 
The  actions  which  will  fall  under  the  above  heading  are  almost 
entirely  special  cases,  depending  upon  special  circumstances :  suits 

1  Winslow  V.  Dousmaii,  18  Wise.  456,  Briggs,  9  Paige,   595;   Sizer  v.  Miller,  9 

462,  per  Cole  J.     In  Hatnlin  v.  Wright,  '23  Paige,  605. 

Wise.  491,  494,  Cole  J.  said:  "  The  ob-  -  Vanderpoel  v.  Van  Valkenburgh,  6 

ject  of  such  a  suit  is  to  reach  the  property  N.  Y.  190. 

of  the  debtor,  and  the  fact  that  all  the  ^  Spicer  f.  Hunter,  14  Abb.  Pr.  4.  All 
grantees  have  become  acceissory  to  the  tlie  assets  of  a  corporation  having  been 
fraudulent  attempt  of  the  debtor  to  place  divided  among  the  stockholders,  a  judg- 
iiis  property  beyond  the  creditors,  gives  ment  creditor  of  the  corporation  brought 
them  such  a  common  connection  with  the  this  action  in  the  nature  of  a  creditor's 
suliject-niatter  of  the  suit  that  they  may  suit  against  a  stockholder  in  order  to  re- 
be. joined,  although  the  purchase  of  each  cover  the  amount  of  her  claim  out  of  the 
was  distinct  from  the  others,  and  each  is  assets  received  by  him.  It  was  held  that 
charged  with  only  participating  in  the  the  action  could  be  niainiained,  and  that 
fraud  in  resjiect  to  his  own  purchase;"  other  stockholders  need  not  be  joined  as 
citing  Brinkerhoff  v.  Brown,  6  Johns.  Ch.  codefendants.  Bartlett  i'.  Drew,  57  M.  Y. 
R.  lo9,  157;  Fellows  r.  Fellows,  4  Cow.  587,589.  For  a  peculiar  case  of  misjoin- 
682;  Boyd  r.  Hoyt,  5  Paige,  65;  N.  Y.  &  der  of  defendants  in  a  creditor's  action,  see 
N.  H.  R.R.  »-.  Schuyler,  17  N.  Y.  592;  Gale  v.  Battin,  16  Minn.  148,  160. 
Story's   Eq.   PI.,   §§    285,   286;    Dix   v. 


400  CIVIL    REMEDIES. 

by  judgment  creditors  to  reach  tlie  property  of  deceased  debtors,  or 
of  beneficiaries  to  reach  trust  property  held  by  deceased  trustees, 
or  of  heirs  or  next  of  kin,  or  legatees,  to  set  aside  the  fraudulent 
transactions  of  administrators  and  executors,  and  the  like.  It  is 
almost  impossible,  therefore,  to  collect  these  various  cases  into 
any  Avell-defined  groups;  each  must  stand  upon  its  own  facts, 
and  will  illustrate  as  far  as  possible  the  broad  generalities  of  the 
equitable  docti'ine  as  to  })arties. 

§  352.  A  testator  left  real  and  personal  property  in  fee  to  A., 
but  if  she  should  die  without  issue,  f  10,000  of  it  were  given  over 
to  B.  The  original  executor  of  this  will  died  leaving  the  trust 
fund  mingled  with  his  own  property,  and  the  whole  passed  to  his 
executor,  C.  A.  died  without  issue,  and  B.  brought  an  action  to 
recover  the  legacy  of  $10,000,  making  C,  the  then  executor  of  the 
original  executor,  the  defendant.  It  was  held  by  the  Court  of 
Appeals  in  Now  York,  that  C.  was  a  necessary  party,  but  that 
the  administrator  of  A.  was  also  a  necessary  defendant  without 
whom  the  issues  in  the  cause  could  not  be  decided.^  "  He  [this 
administrator]  is  a  trustee  of  the  next  of  kin  of  A.,  and  they  are 
interested  in  the  fund  after  satisfying  all  charges  upon  it,  and 
have  a  right  to  be  heard  upon  any  claim  which  tends  to  take  it 
away  for  the  benefit  of  another  or  to  reduce  it."  ^  In  an  action 
brought  by  one  executor  against  his  co-executor  for  an  account,  — 
the  ground  of  the  proceeding  being  the  breach  of  his  trust  by  the 
latter,  and  the  misuse  of  funds  belonging  to  the  estate,  —  the 
legatees,  next  of  kin,  and  creditors  of  the  deceased  are  not  neces- 
sary defendants  unless  the  accounting  is  to  be  final ;  if  it  is  made 
the  final  accounting  and  settlement  of  the  trust,  then  all  these 
persons  must  be  brought  in  as  defendants.^  The  administrator 
in  violation  of  his  trust  fraudulently  conveyed  lands  of  the  estate 
to  a  person  who  was  a  participant  in  the  fraud.  Tiiis  grantee 
died  intestate.  The  children  —  the  only  heirs  and  next  of  kin  — 
of  the  deceased  original  owner  brought  an  action  against  the  ad- 
ministrator and  the  heirs  of  the  grantee,  to  set  aside  the  fraudu- 
lent transfer,  to  compel  a  re-conveyance  of  the  land,  and  for  an 
accounting  by  the  administrator.  This  action  was  held  proper ; 
the  heirs  of  the  grantee  were  held  to  be  necessary  defendants,  and 


1  Trustees,  &c.   i-.   Kellogg,   16  N.  Y.  ^  Ibid.  p.  96,  per  Denio  J. 

83.  3  Wood  f.  Brown,  34  N  Y.  337. 


DEFENDANTS   IN    ADMINISTRATION   SUITS.  401 

properly  imitecl  with  the  administrator.^  And  when  in  a  similar 
case  the  fraudulent  administrator  had  at  different  times  con- 
ve3'ed  portions  of  the  land  to  different  grantees,  an  action  by 
the  heirs  of  the  deceased  owner  against  the  administrator  and  all 
of  these  grantees,  was  sustained.  "  If  there  is  a  common  point 
of  litigation,  the  decision  of  which  affects  the  whole  number  of 
defendants,  and  will  settle  the  rights  of  all,  they  may  all  be  joined 
in  the  same  proceeding."  ^ 

§  353.  An  administrator  is  not  a  necessary  party  defendant 
unless  some  claim  is  made  against  the  estate  which  he  would  have 
the  right  to  resist,  or  unless  the  judgment  would  be  in  some  man- 
ner prejudicial  to  the  estate  ;  a  fortiori,  he  is  not  a  necessary 
defendant  when  the  immediate  object  of  the  action  is  to  increase 
the  amount  of  assets  available  to  the  payment  of  the  debts  of 
the  deceased,  even  though  the  ultimate  purpose  of  the  proceeding 
may  be  the  benefit  of  the  creditor  who  prosecutes  it.  Thus, 
where  the  deceased  in  his  lifetime  had  received  an  absolute  deed 
of  lands,  which  he  did  not  put  upon  record,  and  had  subsequently 
with  a  fraudulent  intent  destroyed  this  deed,  and  f)i"ocured  the 
grantor  therein  to  execute  another  conveyance  of  the  same  land 
without  consideration  to  a  third  person  who  took  the  same  with 
full  knowledge  and  collusively  and  put  the  same  upon  record,  a 
judgment  creditor  of  the  deceased,  whose  judgment  was  recovered 
Avhile  the  deceased  held  the  deed  to  himself,  brought  an  action 
against  the  second  grantee  and  the  heirs  and  widow  of  the  de- 
ceased, seeking  to  set  aside  the  second  deed,  and  to  establish  the 
original  tide  of  the  judgment  debtor,  and  to  enforce  the  lien  of 
his  own  judgment  upon  the  land  ;  this  action  was  held  to  have 
been  properly  brought  against  the  defendants  named.  The  ad- 
ministrator of  the  deceased  was  held  not  to  be  a  necessary  party 
defendant,  because  the  proceeding  was  reallj-  for  the  benefit  of 
the  estate,  and  he  could  make  no  opposition  if  he  were  present.^ 

1  Bassett   v.    Warner,   23    Wise.    673.  3  Cornell    v.   Radway,   22   Wise.  260, 

This  case  is  plainly  the  same  in  principle  265,  per  ]3ixon   C.  J.     It  was  said  that 

as  the  suit  by  a  judgment  creditor  against  the  administrator  or  executor  might  bring 

a  fraudulent  debtor  and  his  grantee.  the  suit ;  but  this  authority  did  not  take 

'-  Bowers  i'.  Keesecher,  9   Iowa,  422,  away  the  right  of  tlie  creditor.     R.  S.  of 

424;  citing  Story's  Eq.  PI.  §§  284,534;  Wisconsin,   eh.  100,  §§   16-18.     But  see 

Bugbee  v.  Sargent,  23  Me.  271 ;  Rayner  per  contra,  as  to  the  necessity  of  the  per- 

V.  Jidian,  Dickens,  677  ;    Brinkerhoff  v.  sonal  representative  being  made  a  party 

Brown,  6  Johns.  Ch.  K.   152;   Varick  v.  in  such  actions,  1  Dan.  Ch.   PI.  (4th  Am. 

Smith,  5  Paige,  160.  ed.),  p.  200,  and  cases  cited. 

20 


402  CIVIL   REMEDIES. 

§  354.  In  actions  by  creditors  against  executors  or  adminis- 
trators to  recover  debts  alleged  to  be  due  from  the  deceased,  or 
by  the  owners  of  the  property  to  recover  assets  which  had  been 
in  the  possession  of  the  deceased  and  apparently  belong  to  his 
estate  in  the  hands  of  his  personal  representatives,  the  legatees 
or  next  of  kin  are  not  necessary  nor  even  proper  parties  defend- 
ant. The  executors  or  administrators  represent  the  estate.  They 
can  bring  all  suits  to  recover  property  in  the  hands  of  third  persons 
alleged  to  belong  to  the  estate,  without  joining  the  legatees  or 
distributees  as  coplaintiffs,  and  on  the  same  principle  they  can 
defend  all  actions  brought  against  themselves,  involving  the 
ownership  of  property  in  their  own  hands,  or  the  indebtedness  of 
the  estate,  without  the  presence  of  legatees  and  next  of  kin  as  co- 
defendants.  Thus  in  an  action  against  executors  to  reach  certain 
monej'S  and  securities  in  their  possession  as  apparent  assets,  but 
which  it  was  claimed  had  been  held  by  the  testator  in  trust  for 
the  plaintiff  and  actually  belonged  to  him,  the  legatees  were  held 
not  to  be  necessary  defendants.^  And  in  an  ordinary  suit  to 
recover  a  debt  due  from  the  deceased,  brought  against  the  admin- 
istrator, the  widow,  and  the  next  of  kin,  it  was  held  that  all  these 
defendants,  except  the  administrator,  were  improperly  joined ; 
he  represents  them,  and  his  defence  is  their  defence.^ 

§  355.  A  different  rule,  however,  prevails  in  an  action  by  a 
distributee  against  the  administrator,  legatee  against  the  exec- 
utor, or  beneficiary  against  the  trustee,  Avhen  the  right  asserted, 
if  it  exists  at  all,  is  also  held  by  all  the  other  parties  similarly 

1  King  f.  Lawrence,  14  Wise.  238.  463;     Dyson    v.    Morris,    1    Hare,    413. 

-  Nelson    v.   Hart,  8  Ind.  293.     That  Wlien,  liowever,  the  estate  lias  been  dis- 

the  personal  representatives  are  tiie  only  tributed  by  a  decree  ef  the  proper  court, 

projK'r   defendants    in    such   actions,   see  the  executors  or  administrators  need  not 

Story's  Eq.   PI.,  §§   104,    140;    Anon.    1  be  made  defendants  in  an  action  brought 

Vern.  261  ;  Lawson  v.  Barker,  1  Bro.  C.  C.  by  a  creditor  to  reach  the  assets  in  the 

303;  Brown  r.  Dowthwaite,  1  Mad.  446 ;  hands   of    the   legatees    or    distributees. 

Jones  V.  How,  7   Hare,  267;  Haycock   v.  Farrell  v.  Smith,  2  B.  &  B.  ?,',]!  ;  Ciegg  v. 

Haycock,    2   Ch.  Cas.   124  ;  Jennings  v.  Rowland,  L.  li.  3  Eq.  368.     And,  in  an 

Paterson,     15    Beav.    28;    Micklethwait  action  by  a  creditor  against  the  heirs  and 

V.  Winstanley,  13  W.  1{.  210 ;  Pritchard  devisees  of  his  deceased  debtor,  to  make 

V.  Hicks,  1  Paige,  270;   Wiser  v.  Blachly,  his  claim  out  of  the  land  of  the  deceased 

1  Johns.  Ch.  437.     In  general,  all  the  per-  in  tlicir  hands,  the  joinder  of  such  heirs 

sonal     representatives    must    be    joined,  and   devisees  was  hehl  projier,  since  the 

Offey  r.  Jenny,  3  Ch.  liep.  02;  Hamp  v.  judgment  could  provide  for  the  order  of 

Robinson,  3  l)e(i.,  J.  &  S.  97.     But  if  an  tiieir  liabilities.      Rockwell    v.   Geery,  6 

executor  has  not  proved,  lie  need  not  be  X.   Y.   Sup.    Ct.  687 ;    Schermerhorn  i'. 

joined.     Strickland  c.  Strickland,  12  Sim.  Barhydt,  'J  Paige,  28. 


DEPENDANTS   IN    SUITS   INVOLVING   TRUSTS.  403 

situated  with  the  one  who  sues,  and  the  decision  woukl  in  fact 
determine  all  their  rights.  In  such  a  case,  in  order  that  the 
trustee  may  not  be  subjected  to  a  multiplicity  of  suits,  when  the 
whole  controversy  could  be  decided  in  one,  the  equitable  doc- 
trine primarily  requires  that  all  the  distributees,  legatees,  or  bene- 
ficiaries should  unite  as  plaintiffs ;  but  if  any  refuse  to  join,  they 
should  be  made  defendants.^  The  statutes  of  several  States  per- 
mit an  equitable  action  to  be  brought  by  the  heirs  of  the  testator 
to  set  aside  a  will  of  lands  for  any  cause  which  can  invalidate  it. 
In  such  a  suit  the  devisees  under  the  will  are  indispensable  de- 
fendants.^ In  fact,  the  executor  can  hardly  be  called  a  necessary 
party,  for  he  takes  no  interest  in  the  land.  Conversely,  in  an 
action  to  reach  the  land  of  a  deceased  intestate,  his  heirs  are  in- 
dispensable defendants,  without  whom  no  decree  can  be  made, 
and  it  is  difficult  to  see  how  the  administrator  could  be  a  neces- 
sary party  .^ 

§  356.  V.  Actions  involving  Trusts,  express  or  implied.  It  is  a 
universal  and  elementary  rule  that,  in  an  action  to  enforce  the 
performance  of  an  express  trust,  the  trustee  is  an  indispensable 
defendant.  This  doctrine  was  applied  in  a  case  where  a  debtor 
had  transferred  personal  property  to  a  trustee  upon  trust  to  sell 
the  same,  and  out  of  the  proceeds  to  pay  the  demands  of  the 
creditor.  The  directions  of  the  trust  not  having  been  complied 
with,  the  creditor  brought  an  action  against  the  debtor  alone  to 
foreclose  the  trust  deed  and  for  a  sale  of  the  goods.  The  trustee 
was  held  to  be  a  necessary  defendant.*     Where  there  were  orig- 

1  Dillon  V.  Bates,  39  Mo.  292.         *  13   Ala.   681 ;    Cassiday  v.   McDaniel,  8 

2  Eddie  f.  Parke's  Executors,  31  Mo.  B.  Mon.  519;  Morrow  v.  Lawrence,  7 
513.  Tlie  action  was  brought  against  the  Wise.  674;  Jones  v.  Jones,  8  Atk.  110. 
executors  alone.  See  Morse  v.  Morse,  42  And,  in  general,  all  the  trustees  must  be 
Ind.  365  ;   infra,  §  379,  note.  joined.     Coppard  v.  Allen,  2  DeG.,  J.  & 

»  Muir  V.  Gibson,  8  Ind.  187,  190.   See  S.    173.     But  a  trustee  wlio   has   never 

Silsbee  l'.   Smith,  60  Barb.  872.     In  an  acted,  and  has  released  all  his  interest  to 

action  for  an  account  of  personal  estate  his  co-trustee,  need  not  be  made  a  party, 

which  came  into  the  hands  of  a  deceased  Richardson  v.  Hulbert,  1  Anst.  65.     When 

administrator   or   executor.   Ids   personal  a  trustee  has  assigned  his  interest  in  the 

representatives  are  necessary  defendants,  trust  estate,  in  general  both  he  and  the 

As  to  tlie  necessary  parties  in  an  action  to  assignee  should  be  defendants.     Story's 

construe  a  will,  see  McKethan  v.  Kay,  71  Eq.  PI.,  §  209;  Bailey  v.  Inglee,  2  Paige, 

N.  C.  1G5,  170.  278.     But  if  he  has  assigned  Ids   entire 

*  Tucker  v.   Silver,  9   Iowa,  261,  per  interest    absolutely,   tlie   assignee    alone 

Wright  C.  J.     After  stating  the  rule  as  should  be   sued,  unless   tlie   assignment 

laid  down  in  the  text,  the  court  declares  was  a  breach  of  trust.     Story's  Eq.  PI., 

that  it  has  not  been  changed  by  the  new  §§  211,  213,  214;  Munch  v.  Cockerell,  8 

procedure.     See  also  McKinley  v.  Irvine,  Sim.  219.     As  examples  of  this  general 


404 


CIVIL   REMEDIES. 


in  ally  two  or  more  trustees,  and  one  or  more  have  died,  in  an 
action  by  the  beneficiary  to  enforce  the  trust,  and  especially  if  a 
violation  thereof  is  alleged  against  all  the  trustees,  the  survivors 
and  the  personal  representatives  of  the  deceased  not  only  may  be 
united  as  codefendants,^  but  they  must  be  so  joined,  or  else  no 
decree  enforcing  the  trust  can  be  made.^ 

§  357.  There  is  a  broad  distinction  between  the  case  of  an 
action  brought  in  opposition  to  the  trust,  to  set  aside  the  deed  or 
other  instrument  by  which  it  was  created,  and  to  procure  it  to 


rule,  when  a  demand  is  to  be  enforced 
against  idiots,  or  lunatics,  their  commit- 
tees or  guardians  must  be  sued,  the  luna- 
tics or  idiots  themselves  being  proper 
but  not  necessary  parties.  Beach  v. 
Bradley,  8  Paige,  146.  And  in  suits  re- 
lating to  the  property  of  insolvents  or 
bankrupts,  their  assignees  are  necessary 
defendants.  Storm  r.  Davenport,  1 
Sandf.  Ch.  13o;  Movan  v.  Hays,  1  Johns. 
Ch.  339;  Sells  v.  Hubbell,  •2'jolms.  Ch. 
394  ;  BoUs  v.  Patton,  10  B.  Mon.  452. 
And  the  assignees  are  the  only  necessary 
defendants;  neither  the  insolvents  or 
bankrupts,  nor  the  creditors,  need  be 
joined  with  them.  Collett  r.  Wollaston, 
3  Bro  C.  C.  228;  Lloyd  v.  Lander,  5 
Mad.  282,  288  ;  Sells  v.  Hubbell,  2  Johns. 
Ch.  394;  Springer  v.  Vanderpool,  4  Edw. 
Ch.  362;  VVakeman  v.  Grover,  4  Paige, 
23  ;  Dias  v.  Bouchaud,  10  Paige,  445. 

1  Sortore  v.  Scott,  6  Lans.  271,  276. 
It  was  held  that  the  rule  forbidding  such 
union  of  parties  in  a  legal  action  against 
joint  debtors  had  no  application  to  such 
an  equitable  suit.  See  also  Petrie  v. 
Petrie,  7  Lans.  90.  This  was  an  action 
to  compel  an  accounting  brought  by  one 
legatee  against  a  surviving  trustee  and 
executor.  Tliere  were  two  other  trus- 
tees deceased,  and  their  personal  rep- 
resentatives had  not  been  made  parties; 
divers  legatees  also  were  not  brought  in. 
A  demurrer,  on  the  ground  of  the  non- 
joinder, was  sustained  by  the  court  at 
General  Term.  Mullin  P.  J.  snid  (p.  95) : 
"  To  an  action  to  compel  an  accounting, 
all  persons  interested  in  the  account 
should  be  made  parties  (Story's  Eq.  PI., 
§  219).  Also,  if  the  legatees  who  were 
paid  gave  agreements  to  refund,  as  they 
should   do,   tiiey   are   necessary   parties. 


Also,  the  personal  representatives  of  the 
deceased  trustees  (King  i'.  Talbot,  40 
N.  Y.  76).  And  if  there  were  no  sucli 
representatives,  they  should  be  api)ointed, 
and  then  made  parties.  All  the  legatees 
should  have  been  parties." 

^  Sherman  v.  Parish,  53  N.  Y.  483,  490. 
Action  by  a  sole  beneficiary  against  a 
trustee  for  an  alleged  breach  of  the  trust. 
There  had  been  other  trustees  who  were 
dead,  and  their  personal  representatives 
were  not  made  defendants.  Eolger  J. 
said  :  "  It  is  the  principle  of  courts  of 
equity,  in  cases  of  breach  of  trust,  when 
no  general  rule  or  order  of  the  court  in- 
terferes, and  when  the  tacts  of  the  case 
call  tor  a  contribution  or  recovery  over, 
that  all  persons  who  should  be  before  the 
court  to  enable  it  to  make  complete  and 
final  judgment,  are  necessary  parties  to 
the  action.  Nor  has  our  mode  of  proced- 
ure abrogated  the  rule."  He  cites  Hill 
on  Trustees,  520,  521  ;  Perry  on  Trusts, 
§§  875,  870,  877;  Lewin  on  Trusts,  845; 
Munch  V.  Cockerell,  8  Sim.  219  ;  Perry  v. 
Knott,  4  Beav.  179;  Shipton  v.  Bawlins, 
4  Hare,  619  ;  Cunningham  v.  Pell,  5  Paige, 
607  ;  New  York  code,  §  118.  The  court 
add  the  following  very  important  rule  : 
That,  on  timely  objection  to  the  want  of 
necessary  parties,  if  the  plaintiff  does  not 
bring  them  in,  the  complaint  must  be 
dismissed,  but  not  uhsolKtdi/ ;  tiie  dismissal 
should  be  without  prejudice.  The  com- 
plaint, however,  should  not  ean  he  thus  dis- 
missed if  the  cause  can  be  made  to  stand  over 
on  terms,  in  order  to  enable  the  jiialniijf  to 
bring  in  the  necessary  parties.  This  ruling 
is  in  exact  conformity  with  the  plain  in- 
tent of  tiie  codes,  and  with  the  views  ex- 
pressed by  me  in  the  text  in  a  former 
paragraph. 


DEFENDANTS   IN   SUITS    INVOLVING   TRUSTS.  405 

be  declared  a  nullit}^  and  that  of  an  action  brought  in  further- 
ance of  the  trust,  to  enforce  its  provisions,  to  establish  it  as  valid, 
or  to  procure  it  to  be  wound  up  and  settled.  In  the  first  case, 
the  suit  ma}^  be  maintained  without  the  presence  of  the  bene- 
ficiaries, since  the  trustees  represent  them  all  and  defend  for 
them.  In  the  second,  all  the  beneficiaries  must  be  joined,  if  not 
as  plaintiffs,  then  as  defendants,  so  that  the  whole  matter  may- 
be adjusted  in  one  proceeding,  and  a  multiplicity  of  suits  avoided. 
The  reason  of  this  distinction  is  obvious.  It  is,  that  any  one 
person  interested  in  opposition  to  the  trust  has  a  right  to  test  the 
validity  thereof,  and  his  voluntary  action  cannot  be  controlled 
by  the  will  of  others,  while  the  trustees  themselves  are  sufficient 
to  represent  and  defend  all  the  interests  of  those  who  claim 
under  the  trust.  But  when  the  trust  is  assented  to,  and  the 
purpose  is  simply  to  carry  out  its  provisions,  all  the  beneficiaries 
are  alike  interested  in  that  object  and  in  reaching  that  same  re- 
sult, and  it  is  just  to  the  trustee  that  the  controversy  should  be 
ended  in  one  proceeding.  As  illustrations  of  this  principle:  In 
an  action  brought  to  set  aside  a  trust  deed  made  by  a  railroad 
company  to  a  trustee  for  the  benefit  of  bondhoklei's,  and  to  re- 
strain a  sale  of  the  road  thereunder,  the  beneficiaries  under  the 
trust  were  declared  not  to  be  necessary  or  even  proper  parties, 
and  the  application  of  one  of  them  —  a  bondholder  —  to  be  ad- 
mitted as  a  defendant  was  denied,  although  he  alleged  that  the 
trustee  intended  to  make  no  defence,  and  was  actually  colluding 
with  the  plaintiff  and  the  company. ^  On  the  same  principle, 
where  a  testator  had  devised  all  his  lands  to  his  executors  with 

1  Winslovv  V.  Minn.,  &(;.  R.  R.,  4  Minn.  But  to  this  rule  there  are  numerous  ex- 
313,  316.  The  suit  was  brought  against  captions.  And  it  is  iiekl  that  the  expres- 
the  trustee  and  the  company.  At  water  J.,  sion.  'all  persons  interested'  must  be 
after  stating  the  question  whetlier  the  parties  to  the  suit,  does  not  extend  to  all 
applicant  was  a  necessary  defendant,  said  :  persons  who  may  be  consequentially  in- 
"  This  action  does  not  differ  in  substance  terested ;  "  citing  Story's  Eq.  PI.,  §§  142, 
fron>  an  ordinary  creditor's  bill  to  set  149,  216.  ..."  And  the  principle  seems 
aside  a  trust-deed  for  the  benefit  of  to  be  well  settled  that,  in  an  action  by  a 
creditors,  or  of  cestuis  que.  tnislent  sustain-  creditor  to  reach  trust  property  in  the 
ing  other  relations  to  the  trustees.  It  is  hands  of  administrators  or  trustees  who 
a  general  rule  in  equity  that  all  persons  have  control  of,  and  whose  duty  it  is  to 
materially  interested  either  legally  or  protect  the  property,  the  cesi/n's  5»e  <r'(.s?en< 
beneficially  in  the  subject-matter  of  the  need  not  be  joined  as  parties.  The  de- 
suit,  are  to  be  made  parties  to  it  either  as  fence  of  the  trustee  is  their  defence,  and 
plaintiffs  or  defendants,  however  numer-  their  presence  is  not  necessary  to  the 
ous  they  may  be,  so  that  there  may  be  a  protection  of  their  interests." 
complete  decree  which  shall  bind  them  all. 


406  CIVIL    REMEDIES. 

power  to  sell  and  distribute  the  proceeds  among  his  heirs,  an 
action  by  a  third  person  claiming  to  own  part  of  these  lands, 
denying  that  they  belonged  to  the  testator,  and  seeking  to  reach 
them  or  their  proceeds  in  the  liands  of  the  executors,  was  held 
to  be  properly  brought  against  the  executors  alone  without  join- 
ing the  heirs  of  the  deceased  as  defendants.  The  suit  in  effect 
sought  to  set  aside  the  trust  pro  tanto  between  the  executors 
and  the  heirs. ^  In  like  manner  an  action  by  one  or  more  cred- 
itors against  the  debtor  and  his  assignee  in  trust  for  all  the 
creditors,  to  set  aside  the  assignment  on  the  ground  of  fraud,  or 
for  any  other  reason,  is  properly  brought  without  joining  all  or 
any  of  the  other  creditors,  who  are  the  beneficiaries,  either  as 
defendants  or  as  plaintiffs.^ 

§  358.  On  tiie  other  hand,  if  an  action  is  brought  based  upon 
the  assignment  or  other  deed  as  a  valid  transaction,  seeking  to 
enforce  the  trust,  to  obtain  an  accounting,  to  procure  a  final 
settlement,  or  for  any  other  similar  relief  which  recognizes  and 
adojDts  the  trust,  and  which,  when  obtained,  would  alike  bene- 
ficially affect  all  the  persons  similarly  situated,  all  the  creditors 
or  other  cestuis  que  trustent  must  either  unite  as  plaintiffs,  or,  if 
the  suit  is  instituted  by  one  or  by  some,  the  others  must  be  joined 
as  defendants.  The  court  will  not  permit  the  same  question  to 
be  litigated  in  separate  suits  at  the  instance  of  each  person  who 
has  a  demand  identical  in  its  nature  with  that  held  by  all  the 
others.^  An  action  by  distributees  against  their  administrator, 
or  by  any  beneficiaries  against  their  trustee,  to  open  an  account 
once  settled,  on  the  ground  of  an  alleged  fraud,  and  for  a  new 

1  Paul   V.   Fulton,   25   Mo.    156.     See  Kans.  67,  83.     Except  in  the  cases  of  ad- 

also  Kidenour  v.  Wlierritt,  30  Ind.  485.  ministrators   and  executors,    and   of    as- 

-  Bank   of  British   North  America  ?;.  signees,  for  the  benefit  of  creditors,  the 

Suydani,  6  How.  Pr.  379.     See  also  Mitch-  general  rule  is  tliat  in  all  actions  against 

ell  V.    Bank   of   St.   Paul,  7   Minn.   252,  trustees  based  upon  the  existence  of  the 

whicli  was  an  action  by  a  stockholder  to  trust,  the  beneficiaries  also  niu.st  be  made 

set  aside  proceedings  of  the  officers,  and  {)arties.      Story's    Eq.    PI.,   §§    l'J2,  *193, 

particularly  an   assignment   in   trust   for  207;  Helm  v.   Hardin,  2   B.    Mon.   232; 

creditors  ;  also,  French  v.  Giflford,  30  Iowa,  Clemons   v.    Elder,    9    Iowa,    272 ;    Van 

148,  159.  Doren  y.  Robinson,   1   C.   E.  Gr&en,  256. 

3  Hank  of  Britisli  North  America  y.  Suy-  If,   however,   the  cestuis  que  tiustent  are 

dam,  6  How.  Pr.  379  ;  Garner  v.  Wright,  very   numerous,   the    rule    is   sometimes 

24   How.  J'r.  144  ;  28  id.  92.     Generally,  relaxed,  or  a   portion  of  them  only  are 

when  a  demand  is  payable  out  of  a  trust  brought   in   as    representatives    for    the 

fund,  the  trustees  and    the  beneficiaries  whole  number.     Story's  Eq.  PI.,  §§  118, 

must  be  joined  as  defendants  in  the  action  -150;  Holland  i'.  Baker,  3  Hare,  68  ;  Har- 

to  recover  it.     Emmert  v.  De  Long,  12  rison  v.  Stewardson,  2  Hare,  530. 


DEPENDANTS    IN    SUITS   INVOLVING    TRUSTS.  407 

accounting  and  distribution  of  the  shares  claimed  to  be  due,  is 
plainly  controlled  by  the  same  rule.  It  is  entirely  analogous  to 
the  suit  above  mentioned  by  creditors  to  procure  an  accounting 
from  their  assignee ;  it  adopts  and  seeks  to  carry  out  the  trust. 
All  the  distributees  or  beneficiaries  must  therefore  be  made  par- 
ties, if  not  as  plaintiffs,  then  as  defendants.^ 

§  359.  In  actions  to  reach  property  impressed  with  an  implied 
trust,  or  to  enforce  a  lien  thereon,  the  person  in  whom  the  legal 
title  is  vested,  and  who  is  an  implied  trustee,  is,  of  course,  a 
necessary  defendant.  Some  examples  will  illustrate  this  rule. 
A  husband  purchased  land  with  his  own  funds,  but  procured  the 
deed  to  be  made  to  his  wife  ;  he  afterwards  employed  a  person  to 
erect  a  dwelling-house  upon  the  land,  who  obtained  a  mechanic's 
lien  on  the  premises  for  the  price  of  his  labor  and  materials. 
An  action  to  enforce  the  lien  was  held  to  be  propejly  brought 
against  the  wife  and  the  husband ;  the  legal  title  was  held  by  her 
in  trust  for  her  husband,  and  as  this  title  was  to  be  divested  by 
the  judgment  which  was  based  upon  a  demand  against  the  cestui 
que  trust,  both  were  necessary  parties.^  Land  was  purchased  by 
a  husband,  but  by  arrangement  was  conveyed  to  his  wife,  the 
sale  and  conveyance  being  procured,  as  was  alleged,  by  the  fraud- 
ulent representations  of  both.  The  grantor,  alleging  the  fraud 
and  the  nonpayment  of  the  price,  brought  an  action  against  the 
husband  and  wife  to  establish  his  debt  and  to  enforce  a  lien  for 
the  same  upon  the  land.  Pending  the  suit  the  wife  died,  and  her 
heirs  were  substituted  as  defendants  in  her  place.  The  Supreme 
Court  of  Iowa,  conceding  that  the  heirs  were  necessary  parties, 
held  that  the  wife's  administrator  was  a  proper  and,  under  certain 
aspects  of  the  case,  a  necessary  defendant,  and  ordered  him  to  be 
brought  in.     If  the  action  was  simply  to  recover  a  pecuniary  de- 

1  Dillon  V.  Bates,   39  Mo.  292.     This  against  such  breacli.    Walker  i'.  Symonds, 

rule  is  general.     Whenever  an  action  is  3    Swanst.    75 ;    Munch   v.    Cockerell,    8 

brought  lor  an  accounting  and  settlement  Sim.  219,  231  ;  Perry  v.  Knott,  4  Beav. 

of  a  trust  estate,  all  persons  interested  in  179,  181  ;  Shipton  v.  Rawlins,  4  Hare,  619. 

the  estate  must  be  parties.     Devaynes  v.  And  in  an  action  by  one  trustee  against  a 

liobinson,  24  Beav.  86  ;  Coppard  v.  Allen,  co-trustee  for  a  breach  of  the  trust,  all  the 

2  DeG.,  J.  &  S.   173;  Hall  v.  Austin,   2  beneficiaries  who  hnve  concurred  in  sucli 

Coll.   570;  Biggs  ?;.  Penn,  4  Hare,   469;  breach  are  necessary  defendants.     Jesse 

Chancellor   v.  Morecraft,  11   Beav.   262;  v.  Bennett,  6  DeG.,  M.   &  G.  609 ;  Wil- 

Penny  v.  Penny,  9   Hare,  39.     If  several  liams  i'.  Allen,  29  Beav.  292;  Roberts  v. 

trustees   have  been  guilty  of  a  breach  of  Tunstall,  4  Hare,  2.37,  261. 

trust,  all  must  be  joined  in  a  suit  by  the  -  Lindley  v.  Cross,  31  Ind.  106. 
ces  ui   que  trust   brought  to  obtain  relief 


408  CIVIL    REMEDIES. 

manil  from  tlie  defendant,  he  was  clearl}^  a  necessary  party ;  but 
if  it  was  only  to  establish  a  specific  lien,  he  was  only  a  proper 
party. ^  A  railroad  company  having  placed  certain  of  its  l)onds 
in  the  hands  of  a  trustee  upon  trust  to  pay  therefrom  a  debt  due 
to  a  certain  creditor  of  the  company,  and  the  trustee  having,  in 
violation  of  his  duty,  surrendered  up  the  bonds  to  the  company, 
and  permitted  them  to  be  cancelled,  whereby  the  security  was 
utterly  lost,  it  was  held,  in  an  action  by  the  creditor  against  the 
trustee  for  a  breach  of  his  trust,  that  the  railroad  company  was 
not  a  necessary  defendant.^  The  owner  of  bonds  and  other 
securities  deposited  them  with  his  agent  for  a  specific  purpose. 
The  agent,  in  violation  of  his  fiduciary  capacity,  disposed  of  them 
to  divers  persons  at  different  times,  and  in  different  amounts. 
The  owner  brought  an  action  against  the  agent  and  all  the  trans- 
ferees for  the  purpose  of  setting  aside  the  sales  and  reaching  his 
property  or  its  proceeds.  It  was  held,  that  this  common  action 
was  improperly  brought ;  that  there  was  no  community  of  interest 
among  the  defendants  ;  and  that  a  separate  suit  should  have  been 
instituted  against  the  agent  and  each  assignee." 

§  360.  VI.  Actions  against  Corporations  and  Stochholders.  Ac- 
tions to  wind  up  the  affairs  of  corporations,  and  those  permitted 
by  creditors  against  stockholders  to  enforce  a  personal  liability  of 
the  latter,  depend  so  entirely  upon  special  statutory  provisions, 
and  these  are  so  different  in  different  States,  that  no  general  rule 
can  be  laid  dow^n  concerning  them  which  shall  be  a  part  of  the 
common  procedure.  In  fact,  the  subject  does  not  strictly  belong 
to  a  treatise  upon  the  principles  of  the  codes.  I  have  collected 
some  cases,  however,  which  indicate  the  tendencies  of  the  courts 
in  the  various  States. 

§  361.  An  insurance  company  became  insolvent,  and  a  receiver 
was  appointed  to  wind  up  its  affairs.  While  it  was  in  an  insol- 
vent condition,  the  directors  had  declared  dividends  which  had 

'  Parshall  v.  Moody,  2-1  Iowa,  314.  wrong   by  accepting   and  cancelling    the 

'^  Ridenour  v.  Wiierritt,  30  Ind.  485.  bonds  with  knowledge  that  the  trust  had 

This  decision  was,  of  course,  made  upon  not  been  fultilled. 

the  objection  of  the  trustee.  He  was  ^  Lexington,  &c.  R.  R.  v.  Goodman,  5 
clearly  liable ;  and  the  legal  doctrines  as  Abb.  Pr.  493,  per  Peabody  J.  This  de- 
to  joint  liability  could  not  apply  in  such  a  cision,  as  it  seems  to  me,  is  in  direct  con- 
case.  The  court  could  not  have  held  that  flict  with  the  well-settled  principle  which 
the  railroad  company  was  not  a  proper  has  been  stated  in  the  te.xt,  and  which  is 
party  if  the  creditor  had  chosen  to  make  fully  sustained  by  the  authorities, 
it  a  defendant.      It  participated  in   the 


DEFENDANTS   IN   SUITS    AGAINST    CORPORATIONS.  409 

been  paid  to  stockholders.  Certain  creditors  brought  separate 
actions  against  individual  stockholders  to  recover  back  the  divi- 
dends so  paid  and  received,  which  actions  vk^ere  pending.  In  this 
condition  of  affairs  the  receiver  instituted  a  suit  against  all  the 
stockholders  to  compel  a  repayment  of  all  the  illegal  dividends, 
and  made  the  above-mentioned  creditors  defendants,  asking 
against  them  an  injunction  to  restrain  the  further  prosecution  of 
their  actions.  It  was  held  by  the  New  York  Court  of  Appeals  that 
the  receiver  could  maintain  such  an  action  ;  that  the  creditors 
could  not;  that  all  the  stockholders  were  properly  sued  together; 
and  that  the  creditors  were  properly  joined  so  as  to  restrain  their 
proceedings  and  avoid  a  circuity  of  action,  and  settle  the  whole 
in  one  controversy.^  A  stockholder,  suing  on  behalf  of  all  the 
others,  instituted  an  action  against  a  railroad  company  to  compel 
the  declaration  of  a  dividend,  alleging  that  funds  were  in  its 
hands  sufficient  and  appropriate  for  that  purpose.  The  action 
was  dismissed  because,  if  sustainable  at  all,  it  should  have  been 
against  the  directors,  who  were  the  managing  trustees,  and  whose 
duty  it  was  to  declare  a  dividend,  if  any  such  duty  existed.^ 

§  362.  In  a  suit  by  judgment  creditors  of  a  corporation  (on 
behalf  of  all  others  who  should  come  in)  against  the  ^ockholders, 
who  were  made  liable  by  statute  for  the  debts  of  the  company  in 
specified  contingencies,  certain  other  judgment  creditors  were 
united  as  defendants.  Upon  a  general  demurrer  interposed  by 
them,  they  were  determined  to  be  neither  necessary  nor  proper 
defendants.  They  should  have  been  joined  as  plaintiffs,  if  at  all ; 
but  this  was  not  necessary,  and  the  complaint  contained  no  allega- 
tion that  they  had  refused  to  unite  in  that  manner.^  In  Ohio, 
under  statutes  making  stockholders  liable  to  judgment  creditors 
when  the  ordinary  legal  remedies  against  the  corporation  have  been 
exhausted,  it  has  been  held  that  all  the  stockholders  must  be 
united  as  defendants,  and  proceeded  against  in  a  single  action.* 

§  363.  An  action  by  stockholders  of  a  bank  against  the  presi- 
dent and  other  officers,  the  corporation  itself,  and  an  assignee,  al- 
leging fraud  and  violation  of  duty  by  the  officers,  misapplication 
of  funds  terminating  in  a  fraudulent  assignment,  and  praying 

1  Osgood  V.  Laytin,  5  Abb.  Pr.  n.  s.  1.     Steamship   Co.,   10  Abb.    Pr.    229,   per 

2  Karnes   v.   Rochester,  &c.   R.  R.,  4     Hogeboom  J. 

Abb.  Pr.  N.  s.  107,  per  T.  A.  Johnson  J.  *  Unisted  v.  Buskirk,  17  Ohio  St.  113. 

•*  Young  V.  New  York  and  Liverpool 


410  CIVIL   REMEDIES. 

that  the  assignment  might  be  set  aside,  the  officers  removed,  a 
receiver  appointed,  and  the  bank  wound  up,  was  sustained  in 
Minnesota  as  being  within  the  jurisdiction  of  an  equity  court, 
and  was  dechxred  to  be  brought  against  the  proper  parties.^  In 
a  simihxr  action,  based  upon  the  same  facts,  and  asking  for  a 
removal  of  the  officers,  the  appointment  of  a  receiver  to  take 
charge  of  the  assets,  and  for  an  election  under  the  direction  of 
the  court,  the  corporation  was  held  to  be  a  necessary  party  de- 
fendant as  well  as  the  officers  implicated.^ 

§  364.  The  holder  of  stock  in  a  corporation  assigned  it  to  a 
creditor  as  collateral  security  for  the  debt,  and  this  creditor  in 
turn  assigned  or  pledged  the  security  to  a  third  person.  The 
latter  having  commenced  an  action  to  enforce  his  right  of  prop- 
erty against  the  corporation  alone,  it  was  decided,  in  Indiana, 
that  both  of  the  assignors  were  necessary  defendants  under  the 
special  provisions  of  the  code  of  that  State,  Avhich  require  the 
assignors  of  things  in  action  not  negotiable  to  be  made  parties 
in  a  suit  by  the  assignee.^  But  in  New  York,  where  the  debtor, 
defendant  in  an  action  by  an  assignee  of  the  demand,  was  entitled 
to  an  accounting  with  the  assignor  in  respect  of  the  claim  sued 
upon,  in  order  to  ascertain  in  fact  whether  any  such  claim  existed, 
and  applied  for  an  order  bringing  him  in  as  a  defendant  for  that 
purpose,  it  was  held  that  such  assignor  was  neither  a  necessary 
nor  a  proper  party,  and  could  not  be  brought  in."*  The  courts  of 
New  York  seem  to  have  established  the  rule  under  the  code  for 
that  State,  that  an  assignor  of  a  thing  in  action  is  never  a  proper, 
much  less  a  necessary  defendant  in  an  action  by  the  assignee, 
even  when  the  plaintiff's  contention  depends  upon  the  legal  rela- 
tions and  liabilities  existing  between  the  defendant  —  the  debtor 
—  and  the  assignor.  This  doctrine  is  entirely  contrary  to  that 
which  prevails  in  many  of  the  States,  and  which  is  sanctioned  by 
their  codes  and  approved  by  their  courts ;  and  it  seems  to  be 
equally  opposed  to  the  former  doctrine  of  equity  which  permitted, 
if  it  did  not  require,  the  presence  of  the  assignor  in  all  cases 

I  Mitchell  V.  Bank  of  St.  Paul,  7  Minn,  which  holds  that  the  mortgagee  who  as- 

252.  signed  tlie  mortgage  is  not  a  proper  de- 

-  French  v.  Giflford,  30  Iowa,  148,  159.  fendant  in  an  action    to   foreclose,  even 

3  Ind.  &  111.  Cent.  R.  R.  v.  McKernan,  though  the  defence  pleaded  by  tiie  mort- 

24  Ind.  62.  gagor  is  that  »f  mistake  in  drawing  the 

*  Allen  V.  Smith,  IG  N.  Y.  415.     See  mortgage,  and  prays  the  relief  of  refor- 

also  Andrews  v.  Gillespie,  47  N.  Y.  487,  mation. 


IN   SUITS    FOR   A    SPECIFIC   PERFORMANCE.  411 

where  the  assignment  did  not  convey  a  legal  title,  and  especially 
where  an  accounting  or  other  settlement  of  matters  in  dispute 
between  the  assignor  and  the  defendant  was  necessary  in  order 
to  ascertain  the  amount  of  the  plaintiff's  demand.^ 

§  365.  In  an  action  virtually  of  accounting  by  one  partner 
against  another  to  recover  the  plaintiff's  share  of  the  assets  or 
profits,  and,  a  fortiori,  when  the  action  is  confessedly  one  for 
accounting,  all  the  partners  must  be  defendants.^  This  special 
rule  assumes  that  there  has  been  no  settlement,  no  balance  ascer- 
tained and  agreed  upon,  so  that  a  simple  action  at  law  could  be 
maintained  therefor  by  one  partner  against  another,  but  the  situ- 
ation is  such  that  an  action  for  an  accounting  is  the  only  relief 
given  by  the  law.  In  such  equitable  action  all  the  partners  are 
necessary  parties.  A  partnership  being  engaged  in  the  business 
of  buying  and  selling  lands,  for  purposes  of  convenience  had  all 
the  titles  taken  in  the  name  of  one  member  of  the  firm.  He 
died,  being  at  the  time  thus  the  apparent  owner  of  lands  which 
were  actually  firm  property.  An  action  bv  the  survivor  for  an 
account  and  settlement  was  properly  brought  against  the  heirs, 
widow,  and  administrator  of  the  deceased ;  these  persons  were 
all  held  to  be  necessary  parties.^ 

§  366.  VII.  Actions  for  a  Specific  Performance.  It  is  the  estab- 
lished rule  of  equity  procedure  that,  in  the  ordinary  and  direct 
action  to  compel  the  specific  performance  of  a  contract  for  the 
sale  of  lands,  the  parties  to  the  contract  themselves,  or  the  per- 
sons Avho  have  become  substituted  in  their  place,  as  the  heirs  and, 
under  certain  circumstances,  the  executors  or  administrators,  are 
the  only  proper  parties  plaintiff  or  defendant.  A  suit  for  the 
purpose  of  obtaining  this  special  relief  cannot  be  combined  with 
a  cause  of  action  for  relief  against  other  persons  claiming  an 
interest  in  the  same  land ;  in  other  Avords,  this  action  cannot  be 
made  to  determine  the  titles  of  other  claimants,  nor  to  foreclose 
the  liens  of  subsequent  incumbrancers.'^     This  well-settled  rule 

1  Story's  Eq.  Fl.,   §  153,  and  notes;  »  Gray  y.  Palmer,  9  Cal.  616. 

1  Dan.  Ch.  PI.  (4th  Am.  ed.),  pp.  197-  «  Tasker  v.  Small,  3  My.  &  Cr.  63,  68, 

199,  and  notes  ;  Miller  v.  Bear,  3  Paige,  per    Lord    Cottenham,    Chan. ;    Mole   v. 

467,468;  Whitney  c.  McKinney,  7  Johns.  Smith,  Jacob,  490,  494,  per  Lord  Eldon, 

Ch.  144;  Trecothick  i'.  Austin,  4  Mason,  Chan.  ;  Wood  v.  White,  4  My.  &  Cr.  470; 

41-44.  Robertson  v.   Great  Western  R.  R.  Co., 

2  Duck  V.  Abbott,  24  Lid.   349;  Set-  10  Sim.  314;  Fagan  i\  Barnes,  14  Flor. 
tembre  v.  Putnam,  30  Cal.  490.  53,  57  ;  Knott  v.  Stephens,  3  Oregon,  269. 


412  CIVIL    REMEDIES. 

has,  however,  heen  departed  from  by  some  State  courts.  Thus, 
in  a  case  decided  by  the  Supreme  Court  of  Minnesota,  a  contract 
to  convey  hind  had  been  given,  and  the  vendee  had  gone  into 
possession.  Subsequently  to  the  execution  of  the  agreement  and 
the  change  of  possession,  certain  persons  had  recovered  judgments 
against  the  vendor,  which  they  claimed  to  be  liens  uj^on  the 
land.  These  judgment  creditors  were  held  to  be  proper  defend- 
ants in  the  suit  for  a  specific  performance  brought  by  the  vendee 
for  the  purpose  of  cutting  off  their  rights  of  redemption,  it  being 
assumed  that  their  liens  were  subordinate  to  the  vendee's  rights.^ 
And  it  was  held  by  a  recent  case  in  California  that,  in  an  action 
to  compel  tlie  specific  performance  of  such  a  contract,  —  the  land 
being  an  undivided  share  of  a  specific  tract,  —  all  persons  subject 
to  the  vendee's  equities,  and  holding  adversely  to  him,  must  be 
made  defendants.^ 

§  367.  In  a  somewhat  peculiar-  case  recently  decided  by  the 
Supreme  Court  of  New  York,  a  person  holding  a  subsequent  and 
adverse  claim  to  the  plaintiff  was  declared  to  be  a  necessary  de- 
fendant to  a  complete  determination  of  the  issues.  The  action 
being  brought  to  procure  the  specific  performance  of  a  land  con- 
tract made  between  the  plaintiff  and  the  defendant,  the  complaint 
alleged  that  the  defendant  had  made  a  subsequent  contract  to 
convey  the  same  land  to  F.,  and  prayed  an  injunction  restraining 
defendant  from  making  a  conveyance  to  F.  Upon  this  allegation 
and  prayer  for  relief,  it  was  held  that  such  subsequent  vendee 
was  a  necessary  party .^     Where  the  vendor    has  died,  and  the 

In  Tasker  r.  Small,  mortgagees  of  the  land  to  junior  incumbrancers  in  a  mortgage 

were  held  to  be  improper  defendants.    In  foreclosure.     None  of  the  authorities  last 

another  case,  a  tenant  of  the  vendor  in  pos-  cited  were  mentioned, 
session  was  declared  an  improper  party.  -  Agard  v.  Valencia,  39  Cal.  292.  This 

All  persons   interested    in    the    subject-  case  is  somewhat  peculiar,  and  the  facts 

matter   of   the   action  as   holders  of  the  are  exceedingly  complicated.     The  deci- 

legal  or  equitable  titles  to  the  premises  in'  sion^ertainly  seems  to  conflict  with  the 

question  were  declared  to  be  necessary  general   rule   as    establislied    by   equity 

parties,  plaintiff  or  defendant,  in  McCotter  courts,  and  as  stated  in  the  text. 
V.  Lawrence,  6  N.  Y.  Sup.  Ct.  392,  395.  3  Fullerton  i-.  McCurdy,  4  Lans.  132. 

1  Seager  v.  Burns,  4  Minn.  141,  14.5,  When   A.    agrees  to   convey   to  B.,  and 

per  Emmett  J.     The  judge  made  no  sug-  afterwards  conveys  to  C,  who  has  notice 

gestion  of  a  doubt  whetiier  these  creditors  of  the  prior  contract,  C.  is   a  necessary 

were  proper  parties.     The  whole  discus-  defendant   in   an  action  by   the  original 

sion  turned  upon  the  question  whether  vendee  to  compel  a  specific  performance, 

tlie  general  allegation  of  the  plaintiff,  that  Stone  v.  Buckner,  12  Smedes  &  M.  73 ; 

they   "claimed   an    interest,"    &c.,   was  Daily  u.  Litchfield,  10  Mich.  29;  Spence 

enough.     Tliey  were  likened  by  the  court  v.  Hogg,  1  Coll,  225. 


IN    SUITS   FOE   A    SPECIFIC   PERFORMANCE.  413 

vendee  brought  his  action  against  the  sole  heir  at  law  of  the 
deceased,  but  conceded  in  his  comj)laint  that  the  entire  purchase- 
money  had  not  been  paid,  and  averred  a  tender  and  a  readiness 
to  pay,  the  administrators  of  the  vendor  were  held  to  be  necessary 
defendants  in  New  York.^  It  would  appear  from  the  reasoning 
of  this  case  that  its  decision  is  confined  to  the  single  case  in 
which  the  vendor  has  died  before  the  purchase-money  has  been 
entirely  paid,  and  in  which  the  same  remains  unpaid  up  to  the 
time  of  commencing  the  action.  If  the  purchase  price  has  been 
paid  in  full,  either  to  the  vendor  during  his  lifetime,  or  to  his 
administrators  after  his  death,  then  his  heirs  would  seem  to  be,  in 
general,  the  only  necessary  parties  defendant,  his  personal  repre- 
sentatives not  then  having  any  interest  in  the  controversy.^  In 
the  face  of  a  statute  providing  that  an  action  for  a  specific  per- 
formance of  a  land  contract  may  be  brought  against  the  executor 
or  administrator  of  a  deceased  vendor,  and  that  other  parties  are 
not  necessary  but  may  at  the  discretion  of  the  court  be  brought 
in,  the  Supreme  Court  of  Iowa  has  held  that  such  personal  repre- 
sentatives are  not  necessary  but  only  proper  parties  ;  that  in  the 
absence  of  the  statute  the  heirs  of  the  vendor  are  the  only  proper 
or  possible  parties  ;  and  that  the  language  of  the  statute  being 
permissive,  it  will  not  be  construed  to  make  the  administrators  or 
executors  necessary  defendants.^ 

•       1  Potter  V.  Ellice,  48  N.  Y.  321,  323.  2  All  the  heirs  of  a  deceased  vendor  are 

Hunt  C.  J.  said  :  "  It  is  difficult  to  say  necessary  defendants  in  the  action.  House 

that  this  action  is  well  brought,  the  ad-  v.  De.xter,  9  Mich.  246 ;  Duncan  v.  Wick- 

ministrators  of  ElHce   [tiie  vendor]    not  liffe,  4  Scam.  452. 

being  made  parties  defendant.     The  heir  ^  Judd  v.   Mosely,  30  Iowa,  423,  427. 

of  Mr.  E.  holds  the  legal  title  in  trust  to  Tiie  action  was  by   the  vendee  against 

convey  the  same  to  the  vendee  upon  per-  the  heirs  only  of  the  deceased  vendor, 

formance  of  the  conditions  of  the  contract.  The  defendants  demurred,  relying  upon 

He  is  a  mere  instrument,  having  no  real  the  statute,  and  claiming  that  the  adminis- 

interest  in  tlie  matter  in  a  case  where  the  trators  should  have  been  the  defendants, 

contract  is  performed.  The  administrators  and  not  the  heirs.   The  court  made  no  allu- 

are  the  real  parties  in  interest.     Both  by  sion  to  the  question  discussed  in  Potter  v. 

the  statute  and  the  common  law  the  in-  Ellice,  —  tiie  payment  of  the   purchase 

terest   in   the   contract    passes   to   them,  price;  nor  does  the  report  show  whether 

They  are  the  parties  to  whom  the  money  the  price  had  been  paid  or  not.    When  a 

is  to  be  paid,  and  who  have  the  entire  vendee  dies,  and  the  vendor  sues  for  a  spe- 

beneficial  interest  in  tiie  contract.     Tlieir  cific  performance,  the  personal  represen- 

discharge  or  receipt  is  a  necessary  muni-  tatives  are  tiie  primary  defendants,  since 

ment  to  the  vendee.     They  are  the  parties  they  pay  the  purchase  price  ;  but  the  heirs 

■who  not  only  receive,  but  who  are  to  set-  are  also  necessary  defendants,  since  the 

tie,  or  contest,  as    the  case  may  be,  the  conveyance  by  the  vendor  will  be  made  to 

amount  to  be  paid  by  the  vendee  in  ful-  them  ;  but  if  the  vendee  has  devised  all  his 

filmentof  his  contract."  interest  under  the  contract,  the  devisees 


414  CIVIL   REMEDIES. 

§  368.  In  an  action  against  the  vendor  to  compel  the  specific 
performance  of  his  contract,  the  phiintiff  united  with  him  as  co- 
defendants  the  holders  of  two  prior  mortgages  embracing  the 
land  agreed  to  be  conveyed  which  had  been  given  by  the  vendor, 
alleging  in  his  complaint  that  the  vendor  had  agreed  to  pay  off 
and  lemove  these  mortgages,  and  that  they  included  other  lands 
in  addition  to  that  claimed  by  the  plaintiff  which  were  sufficient 
to  satisfy  the  demand  secured  thereby,  and  praying  that  the  mort- 
gagees might  be  compelled  to  sell  such  other  lands  first.  The 
New  York  Court  of  Appeals,  however,  held  that  these  mortgagees 
could  not  be  joined  as  codefendants  in  the  action.^  When  in  the 
contract  for  the  sale  and  conveyance  of  land  the  vendor  appeinted 
a  certain  person  as  his  agent  to  make  and  deliver  a  deed  in  his 
name  to  the  vendee,  and  directed  the  agent  to  execute  and  deliver 
the  same,  and  neither  the  vendor  nor  the  agent  complied  with 
the  terms  of  the  agreement,  an  action  brought  against  the  vendor 
and  the  agent  as  codefendants  was  held  to  be  improper,  and  the 
agent  was  declared  not  to  be  a  proper  party  in  any  aspect  of  the 
case,  since  he  had  no  interest  in  the  conti'oversy  adverse  to  the 
plaintiff.^  Land  had  been  sold  at  execution  sale,  and  afterwards 
redeemed  in  alleged  compliance  with  the  statute  which  prescribes 
the  manner  of  redemption.  The  purchaser  denying  the  validity 
of  the  redemption,  brought  an  action  against  the  sheriff  alone  to 
compel  an  execution  and  deliver}'  of  the  deed,  and  this  action 
was  held  insufficient;  it  should  have  embraced  the  person  who 
made  the  redemption,  and  who  claimed  to  hold  the  land  by  virtue 
thereof,  as  a  codefendant  with  the  sheriff.^ 

are  the  necessary  codefendarffs  with  tlie  unite  two  entirely  distinct  causes  of  ac- 

personai  representatives.    Story's  Eq.  PI.,  tion,  —  one   for    a    specific    performance 

§§  IGO,  177  ;  Ciiampionr.  Brown,  G  Jolins.  against  tlie  vendor,  and  tlie  other  for  the 

Ch.  402  ;  Townsend  v.  Cliampernowne,  9  niarslialling  of  tiie  securities  against  tlie 

Price,  130.     If  the  vendor  sues  the  heirs  mortgagees.     These  causes  of  action  were 

alone  of  the  deceased  vendee,  the  latter  compleiely  independent  of  each  other.    If 

can  insist  upon  the  administrators  being  the  plaintiff  was  entitled  to  the  relief  he 

brought   in.       Story's    Eq.    PI.,    §    177 ;  demanded    against    the    mortgagees,   he 

Cock  v.  Evans,  9  Yerg.  287.     The  ven-  could  obtain  it  as  well  in  a  second  action 

dor  and  the  vendee  liaving  both  died,  the  after  the  conveyance  to  him  ;  and  if  the 

heirs  and  widow  of  the  latter  brought  a  vendor  had  agreed  to  pay  off  these  incum- 

suit  against  the  devisees  of  the  vendor  to  brances,  tf.eir  amount  could  be  allowed  to 

whom  the  land  had  been  devised,  and  the  the  plaintiff  in  reduction  of  the  purchase 

parties    were   all   held   to   be   proper   in  price,  although   the  holders  of  the  liens 

Peters  v  Jones,  35  Iowa,  512,  518.     See  were  not  parties  to  the  action  for  a  specific 

cases  cited  by  Miller  J.  at  page  518.  performance. 

I  Chapman  v.  West,  17  N.  Y.  125.     It  ^  Dalioney  v.  Hall,  20  Ind.  264. 

will  be  seen  that  liere  was  an  attempt  to  3  Crosby  i-.  Davis,  9  Iowa,  98.     Where 


DEFENDANTS    IN    SUITS    TO    QUIET    TITLE.  415 

§  369.  VIII.  Actions  to  quint  Title.  The  nature  of  the  action 
to  quiet  title  is  such  that  it  is  impossible  to  lay  clown  any  but  the 
most  general  rule  in  relation  to  its  parties  defendant.  The  very- 
object  of  the  proceeding  assumes  that  there  are  other  claimants 
adverse  to  the  plaintiff,  setting  up  titles  and  interests  in  the  land 
or  other  subject-matter  hostile  to  his.  Of  course  all  these  adverse 
claimants  are  proper  parties  defendant,  and  if  the  decree  is  to 
accomplish  its  full  effect  of  putting  all  litigation  to  rest,  they  are 
necessary  defendants.  Originally,  and  independent  of  v'^tatute, 
this  particular  jurisdiction  of  equity  was  only  invoked  when 
either  many  persons  asserted  titles  adverse  to  that  of  the  plaintiff, 
or  when  one  person  repeatedly  asserted  his  single  title  by  a  suc- 
cession of  legal  actions  all  of  which  had  failed,  and  in  either  case 
the  object  of  the  suit  was  to  settle  the  whole  controversy  in  one 
proceeding.  The  action  has,  however,  been  greatly  extended  by 
statute,  especially  in  the  Western  States,  and  is  there  an  ordinary 
means  of  trying  a  disputed  title  between  two  opposite  claimants. 
The  general  scope  of  these  statutes  is  as  follows  :  The  plaintiff 
must  be  in  possession  claiming  an  estate  in  the  lands.  The  ad- 
verse claimant  or  claimants  must  be  out  of  possession,  and  must 
assert  a  hostile  title  or  interest.  In  this  condition  the  possessor 
of  the  land,  without  waiting  for  any  proceeding  legal  or  equi- 
table to  be  instituted  against  him,  may  take  the  initiative,  and  by 
commencing  an  equitable  action  may  compel  his  adversaries  to 
come  into  court,  assert  their  titles,  and  have  the  controversy  put 
to  rest  in  the  single  judgment.  It  is  plain,  therefore,  that  this 
statutory  suit  is  the  converse  of  the  legal  action  of  ejectment. 
The  action  to  quiet  title  is  not,  however,  confined  to  the  owner- 
ship of  lands;  its  use  is  multiform;  it  may  be  invoked  to  deter- 
mine conflicting  rights  over  personal  property,  and  even  rights 
growing  out  of  contract  where  a  multiplicity  of  actions  depending 
upon  the  same  questions  will  thereby  be  avoided.  I  shall  now 
give  some  illustrations  of  the  action  and  of  its  different  forms.    It 

tlie  vendee  subcontracts,  there  is  a  dis-  but  if  tlie  agreement  between  B.  and  C.  is 

tincticin  depending  upon  tlie  nature  of  tlie  tliat  B.  will  convey  the  land  to  ('.,  then 

sub  contract.     If  A.  agrees  to  convey  to  B.  is  the  only  necessary  party  in  the  ac- 

B.,  and  the  latter  in  turn  agrees  with  C.  tion   against   A.     Alexander   c.    C'ana,   1 

that  the  conveyance  shall  be  made  by  A.  DeG.  &   Sm.  415;    Chadwick  v.  Maden, 

directly  to  him,  —  C.,  — then  C.  must  be  9  Hare,  188;  B v.  Walford,  4  Russ. 

joined  with  B.  in  the  action,  primarily  as  372. 
a  plaintitti  but  if  not,  then  as  a  defendant ; 


416  CIVIL    REMEDIES. 

will  be  seen  that  each  ease  must  stand  mainly  upon  its  own  cir- 
cumstances under  the  guidance  of  the  general  ininciple  which 
requires  all  persons  whose  rights  and  interests  could  be  affected 
by  the  decree  to  be  made  parties. 

§  370.  The  officers  of  a  railroad  company,  in  violation  of  their 
duty  and  of  the  charter,  and  with  a  fraudulent  intent,  issued 
large  amounts  of  spurious  stock  of  the  corporation,  which  had  all 
the  appearance  on  the  face  of  being  genuine.  These  issues  had 
been  made  at  different  times,  and  to  various  persons,  and  the 
stock  was  actually  held  by  three  hundred  and  twenty-six  separate 
owners  who  had  bought  it  in  the  course  of  business  supposing  it 
to  be  genuine.  Most  of  these  holders  had  commenced  suits 
against  the  company  to  compel  it  to  recognize  the  stock  as  valid 
in  their  hands.  Under  these  circumstances  the  corporation  began 
■  an  action  against  all  these  three  hundred  and  twenty-six  persons 
as  defendants,  to  procure  the  stock  to  be  declared  spurious,  to 
enjoin  the  suits  then  pending,  and  to  determine  the  controversy 
at  one  blow.  The  suit  was  sustained  as  a  bill  of  peace  and  to 
quiet  title,  and  the  defendants  were  held  to  have  been  properly 
united  in  the  one  proceeding  ;  their  stock  was  tainted  (if  at  all) 
by  a  common  vice,  and  the  same  fundamental  question  disposed 
of  all  their  claims.^  On  the  same  principle,  the  receiver  of  an 
insolvent  insurance  company  was  permitted  to  unite  all  the  judg- 
ment creditors  of  the  corporation  who  were  separately  suing  the 
stockholders  on  their  personal  liability,  and  to  enjoin  their 
actions  in  order  that  the  liability  of  all  the  stockholders  might 
be  enforced  by  himself  in  the  same  action.^ 

§  371.  In  an  action  to  quiet  title  to  lands  by  correcting  mis- 
takes in  deeds  thereof,  all  persons  having  any  interest  in  the 
land,  or  having  any  interests  which  could  be  affected  b}-  the  relief 
demanded,  must  be  brought  before  the  court  as  defendants.   When 

'  N.  Y.  &  N.  H.  R.  R.  V.  Schuyler,  17  among  all  tliese  claimants.     Story's  Eq. 

N.  Y.   592.     The  final   result    was,    that  PI.,  §§  120,  130  et  seq. ;  City  of  London  r. 

tlie  court  pronounced  the  stock  valid  as  Perkins,  4  Bro.  P.  C.  158  ;  Hardcastle  v. 

against  the  company,  and  each  defendant  Smithson,    3    Atk.    245;    Adair   v.    New 

obtained  a  separate  judgment  against  the  River  Co.,  11  Ves.  429;  Newton  y.  Earl 

plaintiff.     S.    C.    34   N.  Y.  30      Bills   of  of    Egniont,    5    Sim.    130;    Harrison    v. 

peace    are    sometimes    permitted   to   be  Stewardson,   2   Hare,    530;     Holland    v. 

brought   against   a    part    only    of    those  Baker,  3  Hare,  G8. 

claiming  adversely  to  the  plaintiff  when  -  Osgood  v.  Laytin,  5  Abb.  Pr.  x.  8.  1 

their   number  is   very   large;   hut  in  all  (Ct.  of  App.). 
such   cases   the   right   must   he    general 


DEFENDANTS    IN   SUITS   TO    QUIET   TITLE.  417 

the  land  has  passed  through  several  owners  by  a  succession  of 
conveyances,  all  the  series  of  grantors,  or  their  heirs  if  they  them- 
selves are  dead,  are  necessary  defendants.^  In  another  case 
involving  the  same  principle,  a  sale  had  been  made  under  a 
power  of  sale  contained  in  a  mortgage  of  land,  and  a  deed  of  the 
land  executed  by  or  on  behalf  of  the  mortgagee  to  the  purchaser. 
In  the  description  of  the  premises  contained  in  this  mortgage 
there  was  an  important  mistake,  which  was  repeated  in  the  deed 
to  the  purchaser  who  took  the  conveyance  in  ignorance  thereof. 
On  discover)'  of  this  error  he  brought  an  action  to  reform  the 
mortgage  and  his  deed  by  correcting  the  mistake,  and  made  the 
mortgagor  the  only  defendant.  The  Supreme  Court  of  Missouri 
held  upon  these  facts  the  mortgagee  was  a  necessary  defendant, 
and  must  be  brought  in  before  any  judgment  could  be  rendered.^ 
§  372.  The  general  rule  governing  actions  to  quiet  and  deter- 
mine title  to  lands  brought  by  the  one  in  possession  against  the 
persons  who  set  up  adverse  claims,  was  clearly  and  accurately 
stated  by  the  New  York  Court  of  Appeals  in  a  recent  case.  The 
proceeding  was  instituted  under  a  statute  which  corresponds  in 
its  important  features  with  the  description  of  that  class  of 
enactments  given  in  a  preceding  paragraph  (§  369).  The  party  in 
possession  had  united  all  the  adverse  claimants  as  defendants  in 
his  suit,  and  this  was  objected  to  as  a  misjoinder.  The  court 
stated  the  doctrine  in  the  following  manner :  "•  It  is  claimed  on 
the  part  of  the  respondents  that  the  plaintiff  could  not  unite  all 
the  claimants  as  defendants  in  the  action.  I  cannot  doubt  that 
this  claim  is  entirely  unfounded.  Here  are  twenty-four  persons 
claiming  title  to  this  real  estate.  They  all  denied  the  plaintiffs- 
right  upon  the  same  ground,  and  claimed  title  from  the  same- 
source,  and  therefore  had  the  same  defence  to  the  action.  It 
cannot  be  that  under  the  Revised  Statutes  it  would  have  been 
necessary  for  the  plaintiff  to  have  instituted  in  such  a  case  twenty- 
four   special   pruceedings.      Under  the   Revised   Statutes    these 

1  Flanders  v.   McClanahan,  24  Iowa,  defendants  in  actions  to  correct  mistalccs 

486.     See  this  case  for  a  very  elaborate  in   instruments,    see   Newman    v.    Home 

discussion  of  tlie  doctrine  stated  in  tlie  Ins.  Co.^  20  Minn.  422,  424 ;  Durham   v. 

text;   but  see   Tliomas   v.    Kennedy,   24  Bischoff,  47  Ind.  211. 
Iowa,  397  ;  and  see  Beckwitli  v.  Darges,  ^  Haley  v.  Bagley,  37  Mo.  363.     The 

18  Iowa,  303.     In  an  action  to  reform  a  court  finally  held  that  the  purchaser  could 

deed,  both   the  grantor  and  the  grantee  not  maintain  such  an  action  at  all ;  that 

are  necessary  parties.     Pierce  v.  Faunce,  he  was  not  in  such  privity  with  the  mort- 

47  Me.  507.    As  to  necessary  or  proper  gagor  as  to  entitle  him  to  the  relief. 

27 


418  CIVIL    REMKDIES. 

defendants,  if  they  had  all  been  in  possession  of  this  real  estate, 
claiming  tlie  same  title  which  they  set  up  as  defendants  in  this 
action,  could  all  have  been  united  as  defendants  in  an  action  of 
ejectment ;  and  they  could,  if  they  had  chosen  to  do  so,  all  have 
united  in  an  action  of  ejectment  against  the  plaintiff.  Hence 
there  was  no  error  in  the  joinder  of  these  defendants."  ^ 

§  373.  IX.  Actions  for  Partition.  The  action  of  partition  has 
been  made  the  object  of  so  many  special  and  varying  statutory 
regulations  in  the  different  States,  that  it  cannot  properly  be  said 
to  fall  within  the  domain  of  the  general  procedure  as  the  same  is 
established  by  the  codes.  I  shall  only  attempt,  therefore,  to  point 
out  its  general  features  relating  to  parties  defendant,  and  such  as 
are  common  to  all  or  several  of  the  States  in  which  the  reformed 
system  prevails.  The  primary  object  of  the  action  is  to  divide 
the  land  according  to  their  respective  interests  among  the  co- 
owners.  The  proceeding  may  be  instituted  b}-  any  co-owner,  and 
all  the  other  co-owners  are  of  course  necessary  defendants,  and 
they  are  in  such  case  the  only  necessary,  or  even  proper  defend- 
ants, for  the  rights  of  no  other  classes  of  persons  coukl  be  affected 
by  the  decree  making  the  division.  General  creditors  of  any  co- 
owner,  or  of  any  prior  owner  of  the  whole  tract  of  land,  —  as,  for 
example,  the  deceased  ancestor  of  the  present  co-owners,  —  or  of 
any  prior  owner  of  part  of  the  land,  not  having  obtained  judg- 
ment, and  not  therefore  holding  any  lien  upon  the  premises  or  a 
part  of  them,  would  not  be  proper  defendants  for  any  purpose, 
.any  more  than  the  general  creditors  of  a  mortgagor  in  the  case  of 

1  Fisher  v.  Hepburn,  48  N.  Y.  41,  55,  estates,  and  to  others  liaving  future  estates 

■per   Karl  J.     In  a  similar  action,  brought  either  vested  or  contingent,  by  way  of  re- 

by  the  pluintifl' to  quiet  his  title  and  to  cut  niainder,   executory    devise,   or   use,   al- 

olf'tlie  adverse  claim  of  tlie  det'eiulant,  the  though  such  cases  are,  of  course,  much 

latter  answeied  that  before  the  commence-  more   common  in  P^nyland  than  in  this 

meiit  of  the  action  lie  had  conveyed  away  country.     In  all  such  actions  aflecting  the 

all  his  interest  in  the  premises  by  a  war-  inheritance,  and  in  all  actions  affecting  the 

ranty  deed  to  one  C,  and  he  disclaimed  inheritance  where  the  land  is  held  in  the 

all   further   interest   therein.      This  fact  manner  described,  the  rule  is  well  settled 

appearing  on  the  trial,  C.  was  held  to  be  a  that  the  holders  of  all  the  intermediate 

necessary  defendant,  anel  the  action  was  estates  down   to  and  inc/udiu;/  the  holder 

lield  over  by  the  court  in  order  tliat  he  of  the  first  vested  estate  of  inheritance 

might  be  brought  in  by  the  plaintiff;  but,  must  be  joined  as  defendants.      Story's 

the  plaintiff  neglecting  to  bring  him  in,  Eq.  PI.,  §§  144,  198;  Sutton  i'.  Stone,  2 

the   action    was   dismissed.     Johnson    r.  Atk.  101  ;  Heynoldson  v.  Perkins,  Amb. 

Kobinson,  20  Minn.  170.     Actions  to  de-  564.     This  rule  lias  been  adopted  in  New 

termine  title  sometimes   arise  when  the  York,  and  applied  to  partition  suits.  Mead 

land   has  been  "settled,"  —  that  is,  con-  v.  Mitchell,  17  N.  Y.  210,  214,  215;  Clem- 

veyed  to  persons  having  present  partial  ens  v.  (Clemens,  37  N.  Y.  59. 


DEFENDANTS    IN    SUITS    FOR    PARTITION.  419 

a  foreclosure.  The  holders  of  liens  upon  the  entire  tract  to  be 
divided,  such  as  judgment  creditors  of  the  former  owner,  or  the 
holders  of  mortgages  given  by  a  former  owner,  would  not  be 
necessary  defendants,  nor  would  they  be  even  proper  parties  to 
the  action.  Their  liens  would  be  utterly  unaffected  by  the 
decree  and  subsequent  division  in  pursuance  thereof.  As  their 
judgments  or  mortgages  were  incumbrances  upon  the  whole  land 
prior  to  the  titles  of  the  present  co-owners,  the  division  of  the 
real  estate  among  these  co-owners  would  leave  the  same  liens 
undisturbed  and  effectual  upon  the  same  premises  in  their  full 
force  and  effect.  The  transaction  would  be  the  same  in  substance 
as  the  conveyance  by  a  mortgagor  of  the  mortgaged  premises  to 
a  grantee  Avho  takes  them  subject  to  the  existing  lien.  Such 
incumbrancers  are  therefore,  according  to  the  doctrines  of  equity, 
not  even  proper  parties  defendant,  when  the  action  is  simply  for 
a  division  of  the  soil. 

§  374.  The  case  of  those  who  hold  liens  upon  the  undivided 
shares  of  individual  co-owners,  may  appear  at  first  view  to  be 
somewhat  different  from  the  one  last  described,  but  it  really  falls 
within  the  same  principle.  As  long  as  the  co-owner's  share 
remains  undivided,  the  incumbrance  upon  it  is  equally  vague  ; 
that  is,  it  is  not  a  lien  upon  any  specific  and  determined  part  of 
the  whole  common  tract,  but  upon  an  undivided  and  undis- 
tinguished fraction  of  it.  As  the  single  co-owner  himself  cannot 
say  of  any  particular  spot  of  the  territory  in  question,  "  This  is 
mine,  I  am  entitled  to  the  exclusive  possession  of  this,"  so  his 
judgment  creditor  or  mortgagee  cannot  say  of  any  particular  lot, 
"  I  have  a  lien  upon  tltis,  and  can  enforce  that  lien  by  selling  this 
specific  portion."  The  sole  effect  of  the  decree  and  the  decision 
in  execution  thereof  is  to  allot  a  certain  specified  and  determined 
piece  of  land  to  the  co-owner  in  place  of  his  former  undefined 
share,  and  to  transfer  the  lien-holder's  incumbrance  to  this 
specified  and  determined  portion  of  the  soil.  The  incumbrance 
itself  is  neither  increased  nor  diminished  in  amount ;  it  is  merely 
changed  from  its  floating  to  a  fixed  character.  It  is  plain,  there- 
fore, that  the  incumbrancer  thus  described  has  no  real  legal  or 
equitable  interest  in  the  partition  suit  when  the  same  is  instituted 
and  carried  on  to  its  end  for  the  mere  purpose  of  dividing  the 
land  among  the  co-owners.  His  rights  are  unaffected ;  his  lien 
undisturbed.     The  only  apparent  interest  which  he  has,  or  can 


4:^0  CIVIL    REMEDIES,  , 

possibly  have,  is  not  in  the  action  itself,  nor  even  in  the  judgment 
ordering  a  partition,  but  in  the  execution  of  that  judgment.  It 
may  be  said  that  he  has  an  interest  to  see  that  the  division  is 
properly  made,  so  that  the  co-owner  on  whose  share  he  has  the 
lien  will  receive  a  fair  allotment,  and  that  thus  the  value  of  his 
own  security  will  be  preserved.  He  has  such  an  interest  un- 
doubtedly, but  it  is  not  a  legal  one  ;  nor  does  it  commence  until 
the  cause  is  decided  and  the  judgment  rendered.  iMoreover,  the 
actual  division  is  matle  by  officers  of  the  court,  —  the  sheriff,  or 
commissioners  appointed  in  the  case,  —  and  they  act  under  the 
direction  and  control  of  the  court  itself.  As  in  the  case  of  all 
other  administrative  official  acts  the  law  presumes  that  they  wall 
be  rightly  done,  it  does  not  require  a  person  to  be  made  a  party 
to  the  action  in  order  that  he  may  be  in  a  position  to  protect  him- 
self against  the  wrongful  acts  of  the  officers  who  are  appointed 
to  carry  a  judgment  of  the  court  into  effect.  Persons  are  made 
parties  in  order  that  they  may  have  an  opportunity  of  presenting 
their  rights  and  claims  to  the  judge  before  he  makes  his  decree, 
to  the  end  that  they  may  be  considered  and  passed  upon  and 
established  by  the  judgment  itself.  When  that  judgment  can  in 
no  possible  manner  affect  his  riglits,  he  is  not  even  a  proper  party 
to  the  suit.  I  have  thus  stated  the  principles  of  equity  unmodified 
by  statute  which  govern  the  action  of  partition  ^Yhen  the  same  is 
brought  for  an  actual  division  of  the  land.  The  statutory  ])iovi- 
sions  in  relation  to  the  action  may  have  altered  these  rules  in 
some  particulars  ;  but  I  have  only  designed  to  present  the  equity 
doctrine  pure  and  simple  with  the  reasons  therefor;  so  that  local 
changes,  wherev.er  they  have  been  made,  will  be  the  more  readily 
understood  and  their  effect  appreciated.^ 

'  Prior  to   any   contrary   statute,   the  a   tenant   in    common    lias    assijrucd    his 

rule  was  well  settled  that  incumbrancers  share  lor  the  benefit  of  his  creditors,  such 

on  the  undivided  shares,  or  on  the  whole  creditors    are   not    proper  parties.     Van 

tract,   are  not  proper  parties.     Harwood  Arsdale  v.  Drake,  2  Barb.  599.     A  widow 

D.   Kirby,  1   Paige,  469,  471  ;  Sebring  v.  entitled  to  dower  in  an  undivided  share  is 

Mersereau,  Hopk.  501,  503;  s.  c.  on  app.  a  necessary  party.     Wilkin.son  v.  Parish, 

9  Cow.  344,  345;  Wotten  v.  Copeland,  7  3  Paige,  653;  Green  v.  Putnam,  1  liarb. 

Johns.  Ch.  140,  141  ;  Agar  ';;.  Fairfax,  17  500  ;  Gregory  r.  Gregory,  09  N.  C.  522, 

Ves.  542,  544;  Baring  «•.  Nash,  1  Ves.  &  526.     But   a   widow   who   is   entitled    to 

B.   551.     All  the  tenants  in  common,  or  dower  in  the  whole  tract  is  not  a  neces- 

owners   of    undivided    shares,    must    be  sary  defendant  unless  a  sale  of  the  land  is 

l)arties   either    plaintiffs    or    defendants,  to  be  made.     Tanner  v.   Niles,   1    Barb. 

Burhans   v.   Burhans,  2  Barb.   Ch.  398;  560.     It  is  held  in  New  York  that,  inde- 

Teal  y.  Woodworth,  3  Paige,  470.     When  pendent  of  statute,  subsequent  contingent 


,  DEFENDANTS    IN    SUITS    FOR   PARTITION.  421 

§  375.  There  is  another  aspect,  however,  of  the  partition  suit 
which  phices  it  in  very  different  relations  to  the  holders  of  liens 
and  incumbrancers  either  upon  the  whole  land  paramount  to  the 
titles  of  the  co-owners,  or  upon  the  undivided  shares  of  the 
co-owners  themselves.  Its  object  is  sometimes  to  sell  the  whole 
land,  and  to  divide  the  proceeds,  and  not  to  divide  the  land 
itself.  When  this  is  the  nature  of  the  judp^ment,  it  is  plain  that 
the  rights  and  interests  of  tlie  lien-holders  must  be  adjusted  and 
determined  in  the  one  action,  and  especially  so  when  the  land  is 
to  be  sold  free  from  all  incumbrance,  so  that  the  lien  of  all  the 
mortgages  and  judgments  will  be  transferred  from  the  real  estate 
to  the  fund  which  is  the  proceeds  thereof,  and  they  will  be  paid  off 
and  satisfied  therefrom.  There  is  then  a  necessary  antagonism 
between  the  co-owners  and  all  classes  and  species  of  incum- 
brancers upon  their  undivided  shares.  Their  rights  are  clashing  ; 
they  are  opposing  claimants  of  the  same  fund  ;  the  interests  of 
all  are  to  be  finally  established  and  satisfied  at  the  one  judicial 
proceeding.  It  is  evident,  therefore,  upon  the  most  familiar 
principles  of  equity  jurisprudence  in  its  relation  to  parties,  that 
in  the  aspect  of  the  action  now  described,  all  the  holders  of 
liens  and  incumbrances  upon  the  undivided  shares  of  individual 
co-owners  created  subsequent  to  the  inception  of  their  titles, 
are  not  only  proper  but  necessary  defendants  in  order  that  a 
decree  should  be  made  determining  all  these  conflicting  rights 
and  claims,  Avhile  the  holders  of  prior  liens,  if  not  necessary,  are 
at  least  proper  parties   for  a   complete  adjudication.^     It   may 

remainder-men,  or  persons  holding  under  entitled  to  dower,  if  not  admeasured,  must 

executory    devises    who    may    liereafter  be  parties.     Tiie  same  provision  substan- 

come  into  being,  are  bound  by  a  decree  in  tially  is  found  in  all  tiie  statutes  ;  §  8. 

partition    made   by   a   court   of   equity.  Lien  holders  need  not  be  made  parties  in 

wlien    the   present    owners   of    a   vested  the  first  instance  ;  §   10  a  ,•  but  every  in- 

estate  of  inheritance   in   the    land   have  cunibrancer  of  an  undivided  sluire  may 

been  made  parties.     Mead  v.  Mitchell,  17  be  made  a  defendant ;  §  42.     Before  an 

N.  Y.  210,  214,215;  Clemens  v.  Clemens,  order  for  the  sale  of  the  land,  all  incum- 

37  N.  Y.  5y.  brancers  of  undivided  shares,  if  not  al- 

1  Most  of  the  States  have  legislated  in  ready    parties,    must   be   brought   in  by 

reference  to  partition,  and  have  modified  amendment.     Provision  is  made  for  con- 

the  original   equity   doctrine  of  parties,  eluding  unknown  and  contingent  interests 

especially   in  relation    to  incumbrancers,  and  owners.     Tiie  same  rules  are  enacted 

by   either  permitting    or    requiring   the  in  the  following  States :  California,  Code 

liolders  of  liens  to  be  joined  as  defendants  of  Civ.  Proc,  §§  752-754,  759,  761;   Wis- 

in  the  action.     I  add  an  abstract  of  the  cousin,  2  R.  S  ,  eh.   142,   §§  1,  4,  5,  7,  9, 

provisions  which  are  generally  adopted.  17,  38;  Oregon,  Civil  Code,  oh.  5,  tit.  5, 

N.  Y.,2  Edra.  St.  atLarge,  p  326ersr7.  §  1.  §§   419,  421,  483,  but  incumbrancers  by 

All  tenants  in  common,  &e.,  and  persons  judgment  are  excepted,  and  are  not  to  be 


422  CIVIL    REMEDIES. 

sometimes  be  impossible  at  the  commencement  of  the  action  to 
determine  whether  the  judgment  will  be  given  for  a  simple  par- 
tition of  the  land  itself,  or  for  a  sale  of  the  land  and  a  division 
of  the  proceeds  after  satisfying  the  incumbrances,  and  therefore 
the  classes  of  persons  described  may  be  joined  as  defendants 
from  motives  of  precaution.  The  results  thus  reached  from  an 
analysis  of  the  action  itself  with  its  peculiar  relief,  and  the  appli- 
cation thereto  of  familiar  equity  doctrines,  have,  however,  been 
largely  modified  in  many  States  by  statutory  regulations. 

§  376.  In  Xew  York,  when  the  action  for  a  partition  is  brought 
by  one  tenant  in  common  in  fee,  his  wife  is  a  necessary  j)arty,  but 
rather  as  a  defendant  than  as  a  plaintiff.  Her  inchoate  right  of 
dower  is  entitled  to  protection.^  If  one  tenant  in  common  dies, 
so  that  his  estate  descends  to  his  heirs,  if  other  of  the  co-owners 
w^ere  indebted  to  him  for  rents  and  profits  of  the  land,  his  admin- 
istrator should  be  joined  as  a  party  defendant  with  his  heirs, 
since  the  sum  due  for  these  rents  and  profits,  and  which  would 
be  ascertained  by  an  accounting  and  determined  b}'-  the  decree, 
would  go  to  his  personal  estate  in  the  hands  of  the  administrator 
and  not  to  his  heirs.^ 

§  377.  In  Indiana,  the  widow  takes  an  undivided  portion  of 
the  husband's  land  in  fee,  as  his  statutory  heir.  In  an  action  of 
partition,  brought  by  the  wHdow  against  the  other  heirs  of  her 
deceased  husband  in  that  State,  his  creditors,  it  is  held,  cannot 

made  parties ;  Minnesota,  2  Stat,  at  Large,  parte.  Lamed  i'.  Reiisliaw,  37  Mo.  458; 
1873,  ch.  43,  tit.  2,  §§  34-36,  42,  lien-  Wangli  r.  Blumenthal,  28  Mo.462.  Where 
holders  should  be  joined  as  defendants  in  a  deed  of  trust  covered  a  portion  of  the 
the  first  instance  ;  Nebraska,  Code  of  Civ.  land,  tlie  trustee  and  cestui  que  trust 
Proc.,§§802,  804,  819,  823,842,843;  Kan-  were  held  to  have  been  properly  made 
sas,  Codeof  Proc,  §§  614-tJl6;  Iowa,  Code,  defendants  in  order  to  bind  their  interest, 
1873,  §§  3278,  3280,  3281,  3284,  3287,  although  no  relief  was  asked  against  them, 
holders  of  liens  on  the  entire  tract  may  Reinhardt  v.  Wendeck,  40  Mo.  577.  Such 
be  brought  in.  In  Missouri,  2  Wagner's  a  deed  of  trust  is  equivalent  to  a  mort- 
Stat.,  ch.  104,  §§  1,  4,  5 ;  Ohio,  1  K.  S.  gage,  so  that  these  defendants  were,  in 
ch.  81,  §§  1,  2,  12;  Indiana,  2  R.  S.,  ch.  fact,  incumbrancers.  As  to  the  parties  in 
11,  §§  1,  2,  6;  and  Florida,  Bush's  Digest,  Ohio,  see  Tabler  v.  Wiseman,  2  Ohio  St. 
ch.  128,  §  2,  no  menticm  is  made  of  in-  207 ;  Williams  v.  Van  Tuyl,  2  Ohio  St. 
cumbrancers.  It  is  helil,  however,  in  In-  336.  In  New  York,  it  is  said  that  all  In- 
diana, that  all  persons  interested  should  cumbrancers  should  be  brought  in  as 
be  made  parties,  and  that  lien-holders  on  parties  in  order  that  the  land  may  be 
undivided  shares  may  be  joined.  Milli-  sold  free.  Bogardus  v.  Parker,  7  How. 
gan  r.  Poole,  35  Ind.  64,  68.     In  Missouri,  Pr.  305. 

all  the  co-owners,   including   infants  by  i  Rosekrans  v.  White,  7  Lans.  486. 

their  curator,  may  unite  in  the  proceeding  -  Scott   v.    Guernsey,   60    Barb.    163, 

as  plaintiffs,  so  that  it  will  be  entirely  ex  181 ;  s.  c.  on  app.  48  N.  Y.  106. 


DEFENDANTS    IN    SUITS    FOR    AN    ACCOUNTING.  423 

be  made  defendants  for  any  purpose.^  Under  the  California 
homestead  laws,  the  wife  is  a  necessary  codefendant  with  her 
husband  in  the  partition  of  lands  which  they  claim  or  she  claims 
to  be  a  homestead.2  The  general  rule  is  laid  down  in  that  State 
that  "  all  persons  having  or  claiming  any  interest  in  the  land  are 
not  only  proper  but  necessary  parties  to  a  suit  for  partition."  ^ 

§  378.  X.  Actions  for  various  3Iiscella7ieous  Objects.  Partnership 
Matters  and  Accountitig.  An  action  by  one  partner  against  another 
for  a  dissolution  and  a  winding  up  of  the  concern,  partly  based 
on  the  ground  of  a  fraudulent  transfer  of  firm  property  by  the 
defendant  partner  to  a  third  person,  may  properly  include  this 
assignee  as  a  codefendant,  since  the  sale  may  be  declared  void, 
and  he  may  be  ordered  to  account.*  When  two  of  three  part- 
ners—  or  any  part  of  the  entire  firm  —  entered  into  a  contract 
with  a  third  person  by  which  they  transferred  or  agreed  to  trans- 
fer to  him  a  certain  sliare  of  their  interest  in  the  concern  —  a 
mine  —  and  a  like  share  of  the  profits  made  by  their  interest,  an 
action  b}^  such  assignee  to  determine  his  rights,  and  to  obtain  his 
share  in  the  profits,  would  be  properly  brought  against  the  two 
contracting  partners  alone ;  the  other  members  would  not  be 
necessary  defendants.  But  if  the  action  is  to  wind  up  the  con- 
cern, to  dissolve  the  firm,  and  to  sever  the  interests  of  the 
respective  members,  all  the  partners  are  indispensable  parties  ;  if 
the  action  is  instituted  by  one,  or  by  his  assignee,  all  the  others 
must  be  joined  as  defendants.^  And,  as  a  general  proposition,  in 
an  action  to  compel  an  accounting  growing  out  of  an}^  transac- 
tions or  relations,  all  persons  interested  in  obtaining  the  account, 
or  in  the  result  thereof,  are  necessary  parties,  and  should  be  made 
defendants,  if  not  plaintiffs.*'  ' 

1  Gresjory  v.  High,  29  Ind.  527.  The  See  Blood  v.  Fairbanks,  48  Cal.  171,  174, 
court  said  :  "  Any  decree  of  partition  be-     175. 

tween  tlie  widow  and  lieirs  could  not  con-  •>  Petrie  v.  Petrie,  7  Lans.  90,  95.  The 
elude  the  rights  of  the  creditors  against  general  doctrine  is,  that  all  persons  infer- 
tile estate  of  the  deceased ;  nor  could  ested  in  resisting  the  plaintifl"s  demands 
creditors  prove  their  claims  in  such  a  must  be  made  defendants..  As  an  exam- 
proceeding  to  which  the  administrator  pie,  all  joint  debtors,  and  all  persons  liable 
was  not  a  party."  to  contribute  towards  satisfying  the  plain- 

2  De  Uprey  v.  De  Uprey,  27  Cal.  329.  tiff's   claim,    should   be  joined.     Story's 

3  Ibid.  p.  332,  per  Sanderson  J.  See  Eq.  PL,  §  169;  Madox  v.  Jackson,  3  Atk. 
Gates  ;;.  Salmon,  35  Cal.  -576.  406;    Bland   (7.  Winter,   1   S.    &    S.  246; 

*  Webb  V.  Helion,  3  Ilobt.  625;  Wade     Jackson  v.  Rawlins,  2  Vern.  195;   Ferrer 

V.  Ruslier,  4  Bosw.  537.  v.   Barrett,   4   Jones    Eq.   455  ;    Hart   v. 

5  Settembre  v.   Putnam,  30  Cal.  490.     Coffee,  4  Jones  Eq.  321.     When  a  debt  is 


424  CIVIL    REMEDIES.    . 

§  379.  lieseisi^ion  and  Cancellation.  In  actions  to  ol)tain  this 
remedy,  each  case  must  to  a  great  extent  stand  upon  its  own  cir- 
cumstances. There  is  one  general  principle  which  is  generally 
applicable,  and  which  regulates  the  selection  of  parties  in  all 
causes  of  this  nature,  whatever  be  the  particular  facts  upon 
which  each  depends.  It  is  the  simple  but  comprehensive  rule 
tliat  all  persons  whose  rights,  interests,  or  relations  with  or 
through  the  subject-matter  of  the  suit,  would  be  affected  by  the 
cancellation  or  rescission,  should  be  brought  before  the  court  as 
defendauts,  so  that  they  can  be  heard  in  their  own  l)ehalf.  This 
general  principle  is  assumed  or  expressly  announced  by  all  the 
decided  cases,  and  those  which  are  quoted  are  inteiided  simply  as 
illustrations.^ 

§  380.  In  an  action  to  set  aside  an  award,  even  for  the  mis- 
conduct of  the  arbitrators,  the  arbitrators  themselves  cannot 
propeily  be  made  defendants,  as  they  have  no  interest  in  the 
subject-matter,  nor  are  they  legally  affected  by  the  relief  if 
granted.'-^  For  the  same  reason  a  sheriff  is  neither  a  necessary 
nor  a  proper  defendant  in  an  action  to  set  aside  a  deed  of  land 
given  by  him  upon  a  sale  under  an  execution  against  the  plain- 
tiff.^ The  owner  of  land  who  had  been  induced  to  sell  by  the 
fraud  and  collusion  of  his  own  agent,  and  of  the  purchaser,  con- 
veyed the  entire  tract  to  such  purchaser  who  took  the  apparent 
ownership  in  fee  of  the  whole  ;  but  in  fact,  by  a  secret  arrange- 
ment between  himself  and  the  vendor's  agent,  the  latter  was 
entitled  to  one  half  of  the  land  so  sold  and  conveyed,  and  actu- 

joint,  all  the  joint  debtors  must  be  made  the   same   manner   wlio  are   not  joined, 

defendants;  as,  for  example,  if  the  suit  is  None  should  be  defendants  but  the  exec- 

to  enforce  a  demand  against  a  firm,  all  the  utors,    and    the    legatees   and    devisees 

partners  must  be  joined  ;  and  if  the  action  named  in  the  will,  or  the  representatives 

is  brought  against  the  personal  represen-  of  any  that  have  died.     The  posthumous 

tativesof  a  deceased  partner,  the  survivors  child  was  not  a  proper  defendant  nor  a 

must  also  be  codefendants.     Story's  Eq.  necessary  plaintiff.     \\' here  a  wife  seised 

PI.,  §§   ltJ6-168;  rierson  v.  Robinson,  3  in  fee  of  land  died  intestate,  and  lier  lius- 

Swanst.  IS'J  (n.)  ;  Schoiefield  i'.  Heafield,  band,  tenant  by  the  curtesy,  conveyed  the 

7  Sim.  667 ;  Hills  v.  McRae,  9  Hare,  2'J7  ;  land  by  an  absolute  deed,  in  an  action  by 

Butts  v.  Genung,  5  Paige,  254.  the  heir  against  the  grantee  to  set  aside 

'  In  Morse  v.  Morse,  42  Ind.  3G5,  an  this  deed  as  a  cloud  upon  liis  title,  it  was 

action  was  brought  to  revoke  the  probate  held  that  the  husband  was  not  a  neces- 

and   set  aside  a  will  on   account  of  the  sary  defendant.     Zimmerman  v.  Schoen- 

birth  of  a  posthumous  child.     Under  a  feldt,  6  N.  Y.  Sup.  Ct.  142. 
statute  of  Indiana,  a  suit  to  contest  a  will,  -  Knowlton  ;'.  Mickles,  29  Barb.  465. 

or  to  set  it  aside,  may  be  brought  by  one  ^  Draper  v.  Van  Horn,  15  Ind.  155.  ^ 

person,  although  others  are  interested  in 


DEFENDANTS   IN   SUITS    FOR    A  RECISSION.  425 

ally  advanced  to  that  end  one  half  of  the  purchase  price.  An 
action  by  the  grantor  to  set  aside  this  conveyance  was  held  to 
be  properly  brought  against  the  ostensible  purchaser  of  the 
whole  who  took  the  deed  in  his  own  name  and  the  agent  jointly, 
because  the  latter  was  in  reality  one  of  the  purchasers,  and  his 
equitable  interest  would  be  affected  by  the  decree  of  cancel- 
lation.^ 

§  381.  In  an  action  against  a  trustee  to  cancel  a  mortgage  given 
to  him  as  such,  or  to  set  aside  a  deed  to  him  absolute  on  the  face, 
which  it  was  alleged  was  in  fact  a  mortgage,  all  the  persons 
interested  in  the  mortgage  debt  and  the  security  thereof,  and 
particularly  the  beneficiaries  for  whose  benefit  the  trustee  held 
the  security,  are  necessary  parties  defendant,  and  their  absence 
would  be  fatal  to  the  recovery  of  the  relief  demanded.^  When 
the  lands  of  a  deceased  testator  or  intestate  have  been  sold  in 
pursuance  of  an  order  of  the  surrogate,  on  the  application  of 
the  administrator  or  executor,  for  the  alleged  purpose  of  paying 
the  debts  of  the  deceased,  an  action  to  set  aside  such  sale  must 
be  brought  not  only  against  the  persons  to  whom  the  land  was 
sold,  and  the  present  owners  thereof,  but  also  against  the  per- 
sonal representatives  of  the  deceased,  so  that  the  question 
whether  there  Avere  debts  of  such  a  nature  and  extent  as  to 
render  the  sale  necessary,  may  be  determined.^  Bonds  having 
been  issued  in  the  name  of  a  town  in  aid  of  a  railroad  under 
color  of  legal  authority,  and  the  town  subsequently  bringing  an 
action  to  set  aside  the  entire  proceedings  on  the  ground  of  ille- 
gality, and  to  procuj"e  the  bonds  to  be  delivered  up  and  cancelled, 
all  the  holders  of  such  bonds,  it  was  held,  could  be  united  as 
defendants  therein,  so  that  their  rights  could  be  determined  in 
one  proceeding ;  it  was  not  considered  requisite  to  such  joinder 
that  any  common  interest  in  respect  to  their  ownership  of  the 
seeurities  should  exist  among  the  defendants ;  it  was  enough 
that  their  rights  as  holders  all  depended  upon  the  one  question 
involved  in  the  suit.*  If  a  judgment  has  been  recovered  against 
two  or  more  jointly,  and  one  of  them  afterwards  institutes  an 

1  Roy  V.  Haviland,  12  Ind.  361.  erty  affected  by  it,  slinulil  be   made  de- 

-  Clemons  v.  Folder,  9  Iowa,  272,  275.  fendants.     Howse  v.  Moody,   14  Fla.   59, 

a  Silsbee  v.  Smith,  60  Barb.  372.     In  63,  64. 

such  an  action  all  persons   wlio  partici-  ■*  Town  of  Venice  v.  Breed,  G5  Barb. 

pated  in  tlie  fraudulent  transaction,  and  597. 

who  claim  a  present  interest  iu  the  prop- 


426  CIVIL    REMEDIES. 

action  to  set  aside  such  jiuli^ment  or  to  restrain  its  enforcement 
on  the  ground  of  want  of  jurisdiction  in  the  court  which  ren- 
dered it,  or  on  the  ground  of  fraud,  his  co-judgment-debtors  must 
be  made  parties  to  the  proceeding,  either  as  phiintiffs,  or,  upon 
their  refusal  to  join,  as  defendants ;  their  presence  before  the 
court  is  necessary  to  any  adjudication  upon  the  merits.^ 

§  382.  Enforcement  of  Liens.  In  an  action  by  a  subcontractor 
or  material-man  to  enforce  the  mechanic's  lien  given  by  statute, 
it  is  proper  to  make  the  contractor  a  party  defendant  as  well  as 
the  owner  of  the  building,  so  that  all  the  claims  may  be  ad- 
justed in  one  suit.^  It  is  decided,  in  California,  that  when  the 
building  or  other  premises  upon  which  the  labor  was  performed 
is  owned  by  a  partnership,  all  the  members  of  the  firm  are  neces- 
sary defendants  in  an  action  to  enforce  a  mechanic's  lien,  even 
though  the  plaintiff  was  employed  by  one  of  the  partners  alone, 
was  ignorant  of  the  other  co-owners,  and  had  filed  his  notice  of 
lien  only  against  the  one  employing  him.^  It  may  be  stated  as  a 
general  rule  that  in  all  actions  to  enforce  a  lien,  the  person  in 
whose  adverse  possession  the  property  subject  thereto  is  held,  is  a 
necessary  defendant,  or  otherwise  the  decree  would  virtually  be 
a  nullity.'* 

§  383.  A  contract  for  the  sale  of  lands  being  pledged  or  as- 
signed by  the  vendee  as  collateral  securit}'  for  the  payment  of  a 
debt,  and  the  creditor — the  pledgee,  or  assignee  —  bringing  an 
action  to  foreclose  the  right  of  redemption,  and  to  sell  the  secu- 
rity, and  to  apply  the  proceeds  in  payment  of  his  own  demand, 
the  vendor  in  the  contract  is  held  not  to  be  a  necessary  party 

1  Gates  V.  Lane,  44  Cal.  392.  not  be  cut  off.     Evans  v.  Tripp,  35  Iowa, 

2  Carney  v.  La  Crosse,  &c.  R.  R.,  15  37L  When  the  original  owner  of  the 
Wise.  503;  Lewis  v.  Williams,  3  Minn,  premises  on  which  the  lien  e.xists  has 
151.  But  it  is  held  in  Missouri  that  the  conveyed  all  his  interest  by  deed,  he  is  no 
sub-contractor  need  not  bring  in  all  of  longer  a  necessary  defendant  if  no  per- 
several  joint  contractors;  tiie  statute  re-  sonal  judgment  is  asked;  the  suit  must 
quiring  the  "original  contractor"  to  be  be  against  tlie  grantee.  McCormick  v. 
made  a  defendant  is  satisfied  if  one  of  Lawton,  3  Neb.  449,  451.  In  an  action  by 
them  is  joined.  Putnam  v.  Ross,  55  Mo.  tlie  vendor  in  a  land  contract  against  the 
116;  Ilorstkotte  v.  Menier,  50  Mo.  158,  vendee  to  foreclose  the  latter's  rights,  and 
does  not  conflict  with  this  decision,  since  to  sell  his  interest  in  the  land  for  tlie 
it  merely  liolds  tliat  the  original  con-  balance  of  the  purcliase-price  unpaid,  tiie 
tractor  must  be  a  defendant.  vendee's  wife  must  be  made  a  codefendant, 

^  McDonald  v.  Baikus,  45  Cal.  262.  in  Nortli  Carolina,  in  order  to  cut  off  her 

•*  Wingard  r.  Banning,  39  Cal.  543.    A  inchoate  dower  right.     Bunting  v.  Foy, 

junior  incumbrancer  sliould  be   made  a  66  N.  C.  193. 

defendant,  or  his  right  of  redemption  will 


DEFENDANTS    IN    SUITS    FOR    A    CONTRIBUTION.  427 

defendant  in  such  suit.^  The  same  rule  must  apply  to  all  kinds 
and  forms  of  securities  and  things  in  action  which  are  pledged  or 
assigned  for  the  purpose  of  collateral  security,  such  as  bonds, 
notes,  certificates  of  stock,  and  the  like.  The  obligor  on  the 
bond,  the  maker  of  the  note,  the  corporation  which  issued  the 
stock  certificate,  cannot  be  a  necessary  defendant  in  an  action  to 
foreclose  and  sell. 

§  384.  A  mortgage  was  foreclosed  in  a  summary  manner  pre- 
scribed by  statute  in  Iowa,  and  the  premises  w^ere  conveyed  to 
A.,  the  mortgagee.  He  afterwards  assigned  the  mortgage  and 
the  note  secured  by  it  to  B.,  and  entered  into  a  written  agree- 
ment to  convey  to  him  the  land.  B.  subsequently  brought  an 
action  to  foreclose  the  same  mortgage  against  the  mortgagor  and 
the  subsequent  incumbrancers,  and  also  made  A.  a  defendant, 
setting  up  the  former  summary  proceedings  and  A.'s  agreement 
to  convey,  averring  that  such  proceedings  were  invalid  and  worked 
no  change  in  the  rights  of  the  parties,  and  also  alleging  that  there 
was  a  mistake  in  the  description  of  the  land  contained  in  the 
contract  made  by  A.,  and  praying  that  such  mistake  might  be 
corrected  ;  that  A.  might  be  ordered  to  convey  the  proper  prem- 
ises, and  that  the  title  might  be  quieted,  or,  if  the  former  pro- 
ceedings should  be  held  invalid,  that  the  usual  decree  of  fore- 
closure of  the  mortgage  might  be  rendered  and  the  land  sold 
thereunder.  This  action  was  held  by  the  Supreme  Court  of 
Iowa  to  be  properly  brought ;  there  was  no  improper  joinder  of 
defendants  or  of  causes  of  action.^ 

§  385.  Contribution.  It  is  a  general  rule  of  the  equitable  pro- 
cedure that,  in  an  action  to  enforce  an  obligation  to  contribute 
and  to  recover  the  amounts  due  from  contributors,  all  the  persons 
liable  to  make  contribution  should  be  joined  as  defendants,  in 
order  that  their  respective  amounts  may  all  be  adjusted  in  a 
single  suit.  On  the  other  hand,  when  several  parties  are  entitled 
to  a  share  from  a  common  source,  and  the  claims  have  not  been 
adjusted  and  made  specific  and  personal,  but  they  all  depend  upon 
the  same  facts  and  involve  the  same  questions,  all  the  claim- 
ants  should  unite  in  the  action,  or  at  least  should  be  brought 

1  Vaughn  v.  Gushing,  23  Ind.  184.  compel  a  specific  performance  as  reformed, 

2  Thatcher  v.  Haun,  12  Iowa,  803.  or,  in  the  alternative,  for  the  foreclosure 
This  was,  in  fact,  a  suit  to  reform  a  con-  of  a  mortgage.  If  the  relief  was  proper, 
tract  for  the  conveyance  of  land,  and  to  the  parties  defendant  were  clearly  so. 


428  CIVIL    REMEDIES. 

before  the  court  as  defendants  if  they  are  not  joined  as  plain- 
tiffs.i 

§  386.  Actions  hy  Tax-jmycrs.  In  many  States  tax-payers 
and  freeholders  are  permitted  to  maintain  actions  to  set  aside 
proceedings  by  local  authorities,  and  to  restrain  the  enforcement 
and  collection  of  the  tax  which  is  the  result  of  such  proceedings, 
on  the  ground  of  their  illegality.  In  such  actions  not  oidy  the 
officials  themselves  whose  j)roceedings  are  sought  to  be  set  aside, 
and  the  administrative  officers  whose  function  it  is  to  enforce  the 
tax,  must  be  made  defendants,  l)ut  also  all  other  persons  whose 
rights  or  interests  may  be  adversely  affected  by  a  decree  granting 
the  relief  demanded  by  the  plaintiffs.  For  example,  in  such  a 
suit  brought  to  set  aside  the  proceedings  of  certain  municipal 
authorities,  and  to  restrain  the  levy  and  collection  of  a  special 
tax  imposed  l)y  them  for  the  purpose  of  paying  certain  illegal 
judgments  held  by  different  judgment  creditors,  all  these  judg- 
ment creditors  were  declared  to  be  necessarily  joined  as  defend- 
ants ;  they  had  a  common  interest  among  them  all,  centring  in 
the  point  at  issue  in  the  cause. ^ 

§  387.  Actions  to  redeem.  In  an  action  by  a  mortgagor  or 
person  holding  under  him  to  redeem,  all  those,  in  general,  should 
be  made  defendants  whose  interests  will  be  affected  by  the  de- 
cree. If  the  mortgagee  is  living,  he  is,  of  course,  an  indispen- 
sal)le  defendant ;  and  if  he  is  dead,  his  personal  representatives, 
according  to  the  theory  of  mortgages  which  prevails  in  this  coun- 
try. As  a  general  rule,  all  persons  who  are  interested  in  the 
mortgage  money  or  debt  secured  by  the  mortgage  must  be  joined.^ 
Thus,  if  the  mortgage  is  held  by  a  trustee,  the  cestui  que  trust 
should  be  a  codefendant.'^     If  the  mortgagee  has  absolutely  as- 

1  Carre.  Walilron,  44  Mo.  393;  Story's  -  Newcomh  v.   Horton,  18  Wise.  566, 

Eq.  PL,  §  16y  ;  JSIadox  v.  Jackson,  3  Atk.  570,   per    Cole   J.,   citing   Brinkerlioff  v. 

406;   Bland   v.   Winter,    1   S.  «&  S.   246;  Brown,   6    Johns.   Cii.    13',};    Fellows   v. 

Jackson  v.  Rawlins,  '1  Vern.  195;    Hart  Fellows,   4    Cow.   682;   Story's    Eq.   PI., 

V.  Coffee,  4  Jones  Eq.  321.     In  an  action  §§  235  el  seq. 

by  a  surety  for  contribution,  the  general  •*  Story's  Eq.    PI.,    §   188;    Palmer  v. 

rule   is  that  all  the  co-sureties    must  be  Earl  of  Carlisle,  1   S.  &S.  423;   Osbourn 

made  defendants,  and  the  personal  repre-  v.   Fallows,   1   R.   &  M.  741 ;    McCall   v. 

sentatives  of  any  that  are  dead,  and  also  Yard,  1  Stockt. 358;  Larger.  Van  Doren, 

the   principal    debtor.     Story's    Eq.    PI.,  1  McCarter,  208. 

§  169 «;  Ferrer  v.   Barrett,  4  Jones  Eq.  ■•  Story's  Eq.  PI.,  §§  192,208;  Drew 

455;    Haywood    v.    Ovey,   6   Mad.    113;  v.    Harman,   5    Price,    319.     Wiiere    the 

Moore  r.  Moberly,  7  B.  Mon.  299 ;  Tres-  mortgagee  had  assigned  the  mortgaiie  in 

cott  r.  Smytli,  1  McCord  Ch.  301.  trust  for  his  family,  it  was  held  that,  in 


ONE  SUING  ON  BEHALF  OF  OTHERS.  429 

signed  all  his  interest  in  the  mortgage,  he  is  no  longer  a  neces- 
sary part}'  in  the  suit  to  redeem,  but  the  assignee  takes  his  place  ; 
and  if  there  are  several  successive  assignments  of  such  [a  char- 
acter, the  last  assignee  is  the  only  necessary  defendant.^  But 
where  the  mortgagee  has  made  only  a  partial  assignment,  and 
retains  any  interest  in  the  mortgage  or  in  the  debt  secured  by  it, 
he  must  be  joined  with  the  assignee  as  a  codefendant.^  When 
the  suit  is  brought,  not  by  the  mortgagor,  but  by  a  subsequent 
mortgagee  or  other  incumbrancer,  to  redeem  from  a  prior  mort- 
gage, all  the  owners  of  the  equity  of  redemption  are  necessary 
codefendants  with  the  holder  of  such  prior  mortgage.^  If  the 
mortgagor  conve3'S  his  entire  estate  in  the  land,  he  need  not  be 
made  a  part}-  in  an  action  to  redeem  by  liis  grantee.^  Persons 
having  partial  interests  in  the  equity  of  redemption,  or  subsequent 
liens  or  incumbrances  upon  it  or  upon  a  portion  of  it,  may  re- 
deem ;  but  in  such  case  they  must  bring  in  all  other  parties  who 
are  interested  in  the  land ;  such  other  persons  are  necessary 
parties  to  the  action  either  as  plaintiffs  or  defendants,  in  order 
that  all  the  rights  and  claims  may  be  determined  in  one  decree.^ 


SECTION  EIGHTH. 

WHEN  ONE  PERSON  MAY  SUE  OR  BE  SUED  ON  BEHALF  OF  ALL 
THE  PERSONS  INTERESTED. 

§  388.  In  immediate  connection  with  the  general  topics  treated 
in  the  preceding  two  sections,  there  are  certain  special  subjects 

an  action  to  redeem,  tlie  mortgagee,  tlie  cumbrancer  when  the  prior  mortgage  has 

trustee  and  the  beneficiaries  were  all  nee-  been  foreclosed  without  making  him    a 

essary  defendants.     Wetherell  v.  Collins,  party,  see  Anson  r.  Anson,  20  Iowa,  55; 

3  Mad.  255.  Ivnowles  v.  Rablin,  20  Iowa,  101  ;  Street 

1  Story  Eq.  PL,  §  189;  Chambers,  v.  v.  Beal,  16  Iowa,  68  ;  Burnap  v.  Cook,  16 
Goldwin,  9  Ves.  269;  Hill  v.  Adams,  2  Iowa,  149;  Winsiow  v.  Clark,  47  N.  Y. 
Atk.  39;  ^Vhitney  v.  McKinney,  7  Johns.  261,  263;  Dias  v.  Merle,  4  Paige,  259; 
Ch.  144;  Williams  v.  Smith.  49  Me.  564 ;  Bloomer  v.  Sturges,  58  N.  Y.  168. 
Beals  V.  Cobb,  51  Me.  348;  Bryant  v.  ^  Williams  r.  Smith,  49  Me  564 ;  Hil- 
Erskine,  55  Me.  153,  158.  ton  ?•.  Lothrop,  46  Me.   297 ;   Bailey   v. 

2  Story's  Eq.   PI.,   §    191 ;    Hobart  v.  Myrick,  36  Me.  50. 

Abbott,  2  P.  Wms.  643.  ^  Story's  Eq.  PL,  §§  185,  186;  Henley 

3  Story's  Eq.  PL,  §§  186,  191 ;  Palk  v.  Stone,  3  Beav.  355 ;  Chappell  v.  Rees, 
?;.  Clinton,  12  Ves.  48;  Lord  Cholmon-  1  DeG.,  M.  &  G.  393;  Fell  v.  Brown,  2 
deley  v.  Lord  Clinton,  2  Jac.  &  W.  134.  Bro.  C.  C.  278;  Palk  v.  Lord  Clinton,  12 
As  to  the  necessary  defendants  in  an  ac-  Ves.  68,  59;  Farmer  v.  Curtis,  2  Sim. 
tion  for  redemption  by  a  subsequent  in-  466. 


430  CIVIL    REMEDIES. 

which,  though  snhortlinate,  are  sufficiently  important  to  require 
a  separate  notice,  and  they  will  therefore  be  considered  in  the 
present  and  the  following  two  sections.  The  first  of  these  in- 
volves an  answer  to  the  questions,  When  may  one  person  sue  as 
the  representative  of  others  who,  although  not  named,  are  re- 
garded as  virtual  coplaintiffs  in  the  action  ?  and,  When  may  one 
person  in  like  manner  be  sued  as  the  representative  of  others  who 
are  regarded  as  codefendants  ?  The  statutory  provision  permit- 
ting this  method  of  bringing  the  parties  before  the  court  is  as 
follows :  "  When  the  question  is  one  of  a  common  or  general 
interest  of  many  persons,  or  when  the  parties  are  very  numerous 
and  it  may  be  impracticable  to  bring  them  all  before  the  court, 
one  or  more  ma}'^  sue  or  defend  for  the  benefit  of  the  whole."  ^ 

§  389.  Following  the  course  which  has  generally  been  adopted 
thus  far,  I  shall  first  examine  this  provision  of  the  codes  by  an  inde- 
pendent analysis  of  its  language,  and  shall  then  state  the  interpre- 
tation which  has  been  put  upon  it  by  the  courts.  It  is  very 
evident  that  it  describes  two  distinct  and  separate  cases  in  which 
a  plaintiff  or  defendant  may  be  clothed  with  the  representative 
character  described,  and  may  thus  stand  in  the  place  of  others 
whose  rights  and  interests  are  determined  together  with  his  own. 
These  two  cases  depend  upon  distinct  and  separate  facts  and 
circumstances,  and  are  as  folloAvs :  (1)  There  must  be  a  "ques- 
tion of  common  or  general  interest"  to  many  persons  involved  in 
the  action.  The  two  essential  elements  of  this  case  are,  the 
question  of  common  or  general  interest  to  be  determined,  and 
the  many  persons  who  have  this  common  or  general  interest  in 
the  matter  at  issue.  The  "  many  persons  "  in  this  case  is  opposed 
to  the  very  numerous  joarties  in  the  other,  and  is  doubtless  satis- 
fied by  a  number  actually  less.  It  is  certainly  not  necessary,  in 
order  to  fulfil  its  requirements,  that  there  should  be  any  imprac- 
ticahility  of  bringing  all  the  persons  having  the  common  or  gen- 
eral interest  before  the  court.  (2)  The  second  case  depends 
entirely  upon  the  number  of  the  persons  who  should,  according 
to  the  ordinary  rule,  be  made  plaintiffs  or  defendants.  The 
single  essential  element  is  the  impracticability  of  bringing  all  the 

5  New    York,   §    119;  Indiana,   §  19;  Nevada,   §   14;    Nebraska,  §  4o ;    North 

California,   §    382;    Wisconsin,   cli.    123,  Carolina,  §  f,2 ;  Daootah,  §  72 ;  Wasliing- 

§20;  Florida,  §70;  Ohio,  §  37;   Kansas,  ton,  §§   14,  15;  Idaho,  §   14;  Wyoming, 

§    38;    Iowa,  §   2549;    Kentucky,  §  37;  §  42 ;  Montana,  §  14. 
South   Carolina,   §  142;  Oregon,   §   381; 


ONE    SUING    ON    BEHALF   OF   OTHERS.  431 

parties  before  the  court  on  account  of  their  great  niiniher.  The 
language  does  not  in  terms  require  any  question  of  common  or 
general  interest  to  this  great  number,  but  it  is  difficult  to  con- 
ceive of  an  action  in  which  a  very  large  number  of  persons  should 
be  capable  of  joining  as  plaintiffs  —  so  large  that  it  would  be 
impracticable  to  bring  them  all  actuall}'  before  the  court  —  unless 
the  question  to  be  determined  Avas  one  of  common  or  general 
interest  to  them  all.  It  inevitably  follows,  therefore,  from  the 
customary  nature  of  litigations,  that  these  two  cases  described 
by  the  statute  are  in  practice  constantly  united  ;  they  constantly 
run  into  each  other.  In  fact,  it  seldom  if  ever  happens  that  a 
suit  arises  which  falls  strictly  within  the  terms  of  the  second  case, 
and  not  within  those  of  the  first. 

§  390.  Whenever  these  provisions  are  invoked,  in  order  that  a 
plaintiff  may  be  entitled  to  sue  or  a  defendant  to  be  sued  in  the 
representative  character  described,  the  facts  showing  that  the 
requirements  of  either  case  have  been  complied  with  must  not 
onl}^  exist,  but  must  be  alleged  by  the  plaintiff  as  the  very  ground 
and  reason  for  adopting  the  peculiar  form  of  action  permitted  by 
the  statute.  The  complaint  or  petition  must  show  either  that 
many  persons  have  a  common  or  general  interest  in  the  questions 
involved  in  the  action,  or  else  that  the  number  of  persons  who 
would  be  joined  as  plaintiffs  or  defendants,  if  the  ordinary  rule 
was  applied,  is  so  very  great  that  it  is  impracticable  to  make 
them  all  actual  parties.  Unless  the  pleading  contains  these  aver- 
ments, the  action  must  be  regarded  as  though  brought  by  the 
single  plaintiff  or  against  the  single  defendant  named.  It  should 
be  carefully  observed  that  this  provision  does  not  create  any  new 
rights  of  action,  nor  enlarge  any  of  those  now  existing.  The  suit 
cannot  be  sustained  by  one  as  the  representative  of  the  many 
others  Avho  really  sue  in  his  name,  unless  it  could  have  been 
maintained  if  all  these  many  others  had  been  regular!}'  joined  as 
coplaintiffs,  or  unless  it  could  have  been  maintained  by  each  of 
them  suing  separately  and  for  himself.  The  statutory  provision 
is  simply  a  matter  of  convenience,  a  rule  of  form,  a  means  of 
enabling  many  persons  to  have  their  rights  determined  without 
their  actual  appearance  in  court  as  litigant  parties. 

§  391.  Passing  to  the  judicial  interpretation  of  the  clause,  I 
shall  ascertain,  from  an  examination  of  the  decided  cases,  (1) 
when  one  person  may  sue  or  be  sued  in  a  representative  caj)acity  ; 


432  CIVIL    REMEDIES 

and  (2)  the  purpose  and  object  of  such  form  of  action,  and  espe- 
cially its  effects  upon  the  rights  and  duties  of  the  other  persons 
who  are  rejjresented  in  and  by  the  actual  party.  The  conclusions 
reached  in  the  preceding  })aragra})hs  as  to  the  meaning  of  the  pio- 
vision,  and  the  two  distinct  cases  mentioned  in  it,  are  fully  sus- 
tained by  the  authorities.  The  construction  of  this  section  of  the 
codes  has  been  established  by  the  courts,  and  the  rule  is  settled  as 
already  stated,  that,  where  the  question  to  be  decided  is  one  of 
"  common  or  general  interest  "  to  a  number  of  persons,  the  action 
may  be  brought  by  or  against  one  for  all  the  others,  even  though 
the  parties  are  not  so  numerous  that  it  would  be  impracticable  to 
join  them  all  as  actual  jjlaintiffs  or  defendants  ;  but,  on  the  other 
hand,  when  the  parties  are  so  very  numerous  that  it  is  impracti- 
cable to  bring  them  all  into  court,  one  may  sue  or  be  sued  for  all 
the  others,  even  though  they  have  no  common  or  general  inteiest 
in  the  questions  at  issue  ;  ^  and  the  necessary  facts  to  bring  the 
case  within  one  or  the  other  of  these  conditions  must  be  averred.^ 
§  392.  This  section  of  the  codes  is  a  re-enactment  of  a  rule 
which  had  prevailed  in  equity,  and  is  to  receive  a  construction 
which  will  make  it  identical  with  that  pre-existing  doctiine.  Al- 
though the  case  secondly  mentioned  omits  the  element  of  a 
"  common  or  general  interest,"  and  speaks  only  of  the  very  great 
number  as  the  sole  ground  for  permitting  one  to  sue  or  to  be 
sued  for  all  the  others,  yet  even  in  this  case  there  must  be  some 
connection  between  the  parties  who  are  to  be  represented,  accord- 
ing to  the  familiar  principles  of  equity  procedure.     The   right 

1  McKenzie  v.  L'Aiiioureux,  11  Barb.  2  Bardstown,  &c.  R.  R.  v.   Metcalf,  4 

516.     An    action  by  certain  legatees,  on  Mete.  (Ky  )  199,204.     A  trustee  under  a 

behalf  of  all  the  legatees,  against  an  ex-  railroad  mortgage,  given  to  secure  bond- 

ecutor  for   an    account,    settlement,   and  holders,    sued    to   foreclose.      The   court 

payment  of  their  legacies.     Harris  J.  dis-  held  that  the  plaintiff"  could  not  maintain 

tinguished  between  the  phrases  "  parties  the  action,  as  a  representative  of  tl;e  bond- 

uriited  in  interest  "  and  "  panics  having  a  holders,  under  the  first  subiiivision,  be- 

common  or   general   interest."      He  de-  cause  he  sued  as  a  trustee  and  not  as  a 

clares  that  the  last  clause  of  the  section  bond-holder,  and   there  was  no  common 

"applies   indiscriminately   to  all  actions  or    general    interest    between    him    and 

whether   they  involve  questions  of  com-  them,  and  also  because  he  failed  to  aver 

men  interest  or  not."     ISee  also  Towner  their   number,  or   even   that    tiiey  were 

r.  Tooley,  38  Barb.  598,  t)07.     The  rule  many;    he  could  not,  under  the  second, 

thus  laid  down  by  the  courts  must  be  re-  because  lie  had  not  alleged  that  the  bond- 

garded  simjily  as   a  construction  of  the  holders  were  numerous,  and  that  it  was 

statute  ;  it  does  not  purport   to   go  any  impracticable  to  bring  them  all  before  the 

further,  and  to  modify  other  familiar  equity  court, 
doctrines  in  reference  to  the  joiuder  of 
parties. 


ONE  SUING  ON  BEHALF  OF  OTHERS. 


433 


which  the  suit  is  brought  to  assert  must  in  some  manner  or  de- 
gree belong  to  all  who  are  represented  by  the  actual  plaintiff; 
and  all  the  j^ersons  who  are  represented  by  the  actual  defendant 
must  have  some  interest  adverse  to  the  demand  for  relief  set  up 
by  the  action.  The  parties  thus  represented  b}^  the  plaintiff  or 
defendant  may  not  be  in  privity  with  each  other,  but  there  must 
be  some  bond  of  connection  which  unites  them  all  with  the  ques- 
tions at  issue  in  the  action.  The  test  Avould  be  to  suppose  an 
action  in  which  all  the  numerous  persons  were  actually  made 
plaintiffs  or  defendants,  and  if  it  could  be  maintained  in  that 
form,  then  one  might  sue  or  be  sued  on  behalf  of  the  others ;  but 
if  such  an  actual  joinder  would  be  improper,  then  the  suit  by  or 
against  one  as  a  representative  would  be  improper,  notwithstand- 
ing the  permission  contained  in  this  section  of  the  statute.^ 

§  893.  The  provision  applies  both  to  legal  and  to  equitable  ac- 
tions, since  no  restriction  or  limitation  is  contained  in  its  language  ; 
but  when  the  second  case  is  relied  upon,  the  parties  must  be  so 
numerous  that  it  is  really  impracticable  to  make  them  all  actual 


1  Reid  V.  The  Evergreens,  21  IIow. 
Pr.  319,  821,  per  Emmott  J.,  citing  Story's 
Eq.  PL,  §  VIS ;  Adair  v.  New  Kiver  Co., 
11  Vesey,  444  ;  1  Turner  &  Russ.  297  ;  2 
Sim.  3tjy.  This  was  an  action  to  declare 
void  divers  bonds  issued  by  a  corporation 
wliich  was  a  defendant.  Tlie  bonds  were 
of  different  classes  and  kinds,  and  tlieir 
alleged  illegality  did  not  depend  upon  the 
same  questions.  The  complaint  made 
one  bondholder  a  defendant,  alleging  that 
the  bondholders  were  very  numerous, 
&c.  The  action  was  helil  improper ;  the 
other  bf)ndholders  could  not  be  bound  by 
a  judgment  against  the  one.  If  there  was 
a  common  question  affecting  them  all, 
they  migiit  be  so  bound.  For  a  discussion 
of  the  general  doctrine  of  equity  in  its 
application  to  plaintiffs,  see  1  Dan.  (-h. 
PI.  (4th  Am.  ed.),  pp.  235,  237-239; 
Story's  Eq.  PI.,  §§  94  et  seq.  This  doc- 
trine includes  three  classes  of  cases  which 
are,  in  fact,  identical  with  the  two  classes 
mentioned  in  the  codes,  —  namely  (1), 
where  the  question  is  one  of  common  or 
general  interest ;  (2)  where  the  parties 
compose  a  voluntary  association,  and 
those  who  sue  or  defend  represent  the 
whole;  (3)  where  the  parties  are  very 
numerous,   and   although   they  have,  or 


may  have,  separate  interests,  yet  it  is  im- 
practicable to  bring  them  all  before  tlie 
court.  Story's  Eq.  PI.,  §  97.  Among 
the  most  familiar  instances  are  suits  by 
creditors  seeking  to  establish  their  claims 
against  the  estate  of  a  common  debtor. 
1  Dan.  Ch.  PI.,  pp  235,  237  ;  Story's  Eq. 
PI.,  §§  99-103  ;  and  legatees  or  next  of 
kin,  1  Dan.  Ch.  I'l.,  p.  238  ;  Story's  Eq. 
PI.,  §§  104-106  ;  Brown  v.  Ricketts,  3 
Johns.  Ch.  553;  Fish  i'.  Howland,  1 
Paige,  20,  23;  Hallett  v.  Hallett,  2  Paige, 
18-20,  21.  For  further  illustrations  in 
cases  of  voluntary  associations  and  the 
like,  see  Story's  Eq.  PI.,  §§  107-1156;  1 
Dan.  Ch.  PI.,  pp.  238,  239.  The  same  prin- 
ciple applies,  under  similar  circumstances, 
to  defendants.  1  Dan.  Ch.  PI.,  pp.  272, 
273;  Story's  Eq.  PI.,  §§  116  el  seq.; 
Wood  i\  Dummer,  3  Mason,  315-319,321, 
822;  Gorman  v.  Russell,  14  Cal.  531; 
Cullen  V.  Duke  of  Qiieensbcrry,  1  Bro. 
C.  C.  101 ;  1  Bro.  P.  C.  396.  The  modern 
tenilency  in  courts  of  equity  has  been 
towards  a  relaxation  of  the  original  rule 
as  to  bringing  in  all  the  parties  interested, 
and  towards  a  free  application  of  this  doc- 
trine as  to  representation  among  the  per- 
sons interested. 


28 


434  CIVIL    REMEDIES. 

plaintiffs  or  defendants  ;  and  it  has  been  held  that  the  nnmher 
tliirty-five  was  not  sufficiently  great.^  When  one  sued  on  behalf 
of  an  association  by  its  name,  upon  a  promissory  note,  and  alleged 
in  his  complaint  that  it  was  unincorporated,  and  that  its  members 
were  very  numerous,  the  mere  facts  thus  alleged  were  held  to  be  in- 
sufficient.2  Undoubtedly,  in  such  a  case  the  plaintiff  should  sue 
on  behalf  of  the  persons  who  compose  the  society,  and  not  on 
behalf  of  the  society  itself.  Indeed,  this  point  has  been  directly 
decided.  It  is  held  that,  in  case  of  such  a  society  whose  members 
are  too  numerous  to  bring  them  all  before  the  court,  the  plaintiff 
must  make  one  of  them  a  defendant  as  a  representative  of  the 
others,  and  not  make  the  association  a  defendant.^ 

§  394.  The  following  are  some  particular  instances  in  which 
these  principles  have  been  applied,  and  in  Avhich  it  has  been  held 
that  the  action  might  be  maintained  by  one  or  more  for  the  bene- 
fit of  the  others.  One  creditor  may  sue  on  behalf  of  all  the  other 
creditors  in  an  action  to  enforce  the  terms  of  an  assignment  in 
trust  for  the  benefit  of  creditors,  to  obtain  an  accounting  and 
settlement  from  the  assignee  and  other  like  relief;  also,  in  an 
action  to  set  aside  such  an  assignment  on  the  ground  that  it  is 
illegal  and  void ;  and  also  one  judgment  creditor  may  sue  on  lie- 
half  of  all  otlier  similar  creditors  in  an  action  to  reach  the  equi- 
table assets,  and  to  set  aside  the  fraudulent  transfers  of  the 
debtor.  In  all  these  classes  of  cases  the  creditors  have  a  common 
interest  in  the  questions  to  be  determined  by  the  controversy.^ 
When  a  mortgage  had  been  given  b}'  a  railroad  company  to  a 
trustee  in  order  to  secure  bondholders,  and  he  desired  to  obtain 
directions  of  the  court  in  respect  to  the  payment  of  coupons,  and 
brought  an  action  for  that  purpose,  and  alleged  in  his  complaint 
that  the  holders  of  the  coupons  were  very  numerous,  so  that  it 

1  Kirk  V.  Young,  2  Abb.  Pr.  453,  per  3  Keller  v.  Tracy,  11  Iowa,  530.  The 
Clijrke  J.  at  S.  T.  Undoubtedly,  a  num-  society  was  an  unincorporated  cliurcli. 
ber  niiicli  less  than  thirty-five  would  be  The  objection  that  plaintiff  cannot  sue 
sufficient  wiien  a  "common  interest"  is  alone,  but  should  sue  on  behalt'of  all  others 
set  up.  In  an  action  by  creditors,  it  was  similarly  situated,  must  be  taken  by  de- 
held,  by  a  very  able  Enjjlish  judge,  that  murrer  or  answer,  or  is  waived.  Stewart 
twenty  was  too  small  a  number.     Harri-  v.  Erie,  &c.  Co.,  17  Minn.  372,  3'J8. 

son  V.  Stewardson,  2  Hare,  530.  *  Greene  v.  Breck,   10  Abb.  Pr.  42  ; 

2  Habicht  r.  Pemlerton,  4  Sandf.  Brooks  r.  Peck,  38  Barb.  519.  See  Story's 
657,  per  Duer  J.  This  action  would  cer-  Eq.  PI.,  §§  99-103;  1  Dan.  Ch.  PI.  (4th 
taiidy  fall  within  the  first  case,  since  tlie  Am.  ed),  pp.  235,  237.  Twenty  creditors 
members,  being  all  owners  of  the  note,  had  was  held  to  be  too  small  a  number  in 
a  "  common  interest."  Harrison  v.  Stewardson,  2  Hare,  530. 


ONE  SUING  ON  BEHALF  OF  OTHERS.  435 

.  was  impracticable  to  bring  them  all  before  the  court,  it  was  held 
proper,  and  within  the  provision  of  the  code,  to  make  a  few  of  these 
persons  defendants  as  the  representatives  of  all  the  others,  with 
suitable  averments  showing  the  reasons  for  such  a  form  of  action.^ 
Conversely,  a  suit  can  be  maintained  by  one  on  behalf  of  all  to 
foreclose  a  mortgage  when  the  number  of  mortgagees,  or  of  bond- 
holders, is  large.  It  would  be  hardly  necessary  in  such  a  case 
that  the  number  of  persons  should  be  so  great  as  to  make  it  im- 
practicable to  bring  them  all  in  ;  they  have  a  common  interest  in 
the  questions  at  issue. ^  The  provision  also  applies  to  actions  by 
distributees  for  their  shares,  and  by  legatees  brought  to  settle  the 
estate  and  to  recover  their  legacies  ;  '^  and  to  actions  by  heirs  to 
set  aside  a  deed  or  will  of  their  ancestor.*  In  both  these  cases 
there  is  a  common  interest  among  the  claimants. 

§  395.  An  action  by  members  or  shareholders  of  an  unincorpo- 
rated association  for  a  dissolution,  winding  up,  and  division,  or 
for  other  like  relief,  plainly  falls  within  the  statutory  provision, 
and  may  be  brought  by  one  of  the  associates  in  a  representative 
capacity.  In  some  instances  the  proceeding  would  plainly  fall 
within  the  first  subdivision,  since  there  would  be  a  common  in- 
terest among  all  the  members  or  shareholders  ;  in  other  instances, 
it  might,  perha[)s,  fall  within  the  second,  and  be  based  upon  num- 
bers alone.^  The  question,  whether  one  tax-payer  or  freeholder 
can  sue  for  the  benefit  of  others  similarly  situated,  to  restrain  or 
set  aside  the  acts  of  local  officials  done  under  color  of  authority, 
can  only  be  properly  considered  and  determined  by  those  courts 
which  hold  that  such  actions  are  proper  in  their  general  form. 
Wherever  this  particular  kind  of  action  is  condemned  in  toto,  the 
decision  of  the  particular  point  now  referred  to  must,  of  course, 

1  Coe  V.  Beckwith,  10  Abb.  Pr.  296.  lett  v.  Hallett,  2  Paige,  18-20,  21  ;  Fish 
See  Reid  v.  The  Evergreens,  21  How.  v.  Howland,  1  Paige,  20,  26;  Brown  v. 
Pr.  319.  Ricketts,  3  Jolins.  Ch.  553. 

2  Blair  r.  Slielby  Co.  Agr.  Soc,  28  *  Hendrix  v.  Money,  1  Bush  (Ky.), 
Ind.  175.      Action  on  belialf  of  one  hun-  306. 

dred  and  thirty-eiglit  mortgagees.     Bards-  5  Warth  v.  Radde,  18  Abb.  Pr.  396; 

town,  &c.  R.  R.  t;.  Metcalf,  4  Mete.  (Ky.)  Gorman   v.    Russell,    14    Cal.    531;    Von 

199.  Schmidt     v.    Huntington,     1     Cal.     55; 

^  McKenzie  v.  L'Amoureu.x,  11  Barb.  Stewart  v.  Erie  and  West.  Trans.  Co.,  17 

516;    Towner  v.   Tooley,  38  Barb.  598.  Minn.  372,  398 ;  Cockburn  y.  Thompson, 

In  the  first  of  these  cases  the  number  of  16  Ves.  321 ;  Story's  Eq.  PI.,  §§  107-1156; 

persons  represented  by  the  plaintiff  was  1    Dan.   Ch.  Pi.   (4th  Am.  ed.),  pp.  238, 

three.     Story's   Eq.   PI.,  §§   104,    105;    1  239.     In    reference    to    defendants,   see 

Dan.  Ch.  PI.  (4th  Am.  ed.),  p.  238;  Hal-  Story's  Eq.  PI.,  §§  116-135. 


436  CIVIL    REMEDIES. 

be  entirely  extra-judicial.  In  the  States  Avhich  permit  such  suits 
by  a  tax-payer  or  freeholder  generally,  there  is  some  conflict  of 
opinion  in  respect  to  the  question,  whether  one  can  sue  on  behalf 
of  others  similarly  situated  with  himself.  It  has  been  held  in 
Wisconsin  that  an  action  cannot  be  maintained  by  one  tax-payer 
as  a  representative  of  all  others  in  a  local  district,  to  prevent  the 
enforcement  of  an  alleged  illegal  tax  which  would  be  a  lien  upon 
real  estate,  on  the  ground  that  the  lands  owned  b}-  the  individual 
tax-i)ayers,  and  affected  by  the  tax,  are  distinct  and  separate  par- 
cels, and  there  is  no  common  interest  among  the  owners  thereof. 
The  conclusion  was  that  each  tax-payer  must  sue  sepaiately.^ 

§  396.  I  pass  now  to  consider  the  nature  of  an  action  brought 
by  one  on  behalf  of  others,  and  its  effects  upon  the  rights  and 
duties  of  those  who  are  represented  by  the  actual  plaintiffs.  The 
persons  not  named  in  such  cases  are  not  parties  to  the  suit  unless 
they  afterwards  elect  to  come  in  and  claim  as  such,  and  bear  their 
proportion  of  the  expenses.  It  is  optional  with  them  whether 
they  will  become  parties  or  not,  and  until  they  so  elect  they 
are,  in  the  language  of  the  books,  "  in  a  sense  deemed  to  be 
before  the  court."'  ^  They  are  so  far  before  the  court,  that  if 
they  neglect,  after  a  reasonable  notice  to  them  for  that  purpose,  to 
come  in  under  the  judgment  and  establish  their  claims,  the  court 
will  protect  the  defendants  and  parties  named  from  an}'  further 
litigation  in  respect  of  the  same  fund  or  other  subject-matter, 
espeeiallv  so  far  as  such  litigation  may  tend  to  disturb  the  rights 
of  the  parties  as  fixed  by  the  judgment.  A  person  who  elects 
to  come  in  and  make  himself  a  party,  must  apply  for  an  order 
making  him  such,  and  upon  the  granting  the  order  he  is  to  all 
intents  and  purposes  a  party .^ 

§  397.  This  rule,  which  is  merely  the  doctrine  and  practice  of 
equity  applied  to  eases  arising    under  the  statutory  provision, 

1  Newcoml)  v.  Horton,  18   Wise.  ri66.  suit  on  liclialf  of  Iiis  fellow-citizens  of  tlie 

See  the  cases  on  tlie  subject  of  tax-payers  town.  I'erry  v.  Wliitaker,  71  N.  C.  477. 
and  frceliolilers  uniting,  collected,  .s«y;7-«,  -  Stor3''s  Eq.  Pi.,  §  'J'J ;  Adair  v.  New 

in  §  269.     When  tiiey  are  permitted  to  River  Co.,  11  Ves.  444. 
join  in  an  action,  one  is  suffered  to  sue  as  '^  Stevens  v.  Brooks,  22  Wise.  695,703, 

a  representative   of  all   others  similarly  704,  per  Dixon  C.  J.  ;  Hallett  v.  Hallett, 

situated.     In  North  Carolina,  one  citizen  2  Paige,  18,  per  Walworth,  Ch. ;  Good  v. 

has   been   permitted  to  sue  on  behalf  of  Blewit,  19  Ves.  336,  oo'J,  per  Lord  Eldon; 

others  in  an  action  to  test  the  valiility  of  Story's  Eq.  PI.,  §  99  ;  Barker  v,  Walters, 

an  election  ;  and,  conversely,  another  citi-  8  Beav.  92. 
zen  was  sufiered  to  appear  and  defend  the 


ONE    SUING    ON    BEHALF    OF   OTHERS.  437 

has  not  been  acquiesced  in  by  all  the  courts.  In  Kentucky, 
where  the  chancery  has  ahvayo  existed  as  a  separate  tribunal, 
and  where  even  under  the  code  there  is  a  nominal  distinction 
kept  up  between  legal  and  equitable  actions,  it  is  held  that  the 
assent  of  those  who  are  not  actual  parties,  but  who  have  a  com- 
mon interest  with  their  representative,  will  be  presumed  unless 
the}'^  show  their  disapproval  by  some  act  indicating  the  dissent.^ 
This  is  in  direct  conflict  with  the  rule  first  stated.  According  to 
the  one,  the  persons  who  are  represented  must  do  some  affirm- 
ative act  of  approval  and  adoption,  and  regularly  this  act  should 
be  an  application  to  the  court,  and  the  obtaining  an  order  declar- 
ing them  to  be  in  all  respects  parties  ;  according  to  the  other, 
these  persons  must  do  some  act  of  disaffirmance  and  rejection, 
but  what  particular  act  is  not  disclosed. 

§  398.  The  question  whether  any  specified  person  among  the 
number  of  those  represented  had  made  himself  or  was  a  party  to 
the  suit,  may  present  itself  in  two  very  different  aspects,  and  its 
answer  may  be  necessary  for  two  very  different  purposes.  In  the 
first  place,  the  question  may  be,  whether  this  individual,  as  against 
the  defendants  in  the  action,  and  perhaps  as  against  those  who 
were  the  original  plaintiffs,  or  who  had  made  themselves  such,  is 
entitled  to  the  immediate  benefits  of  the  recoverjs  to  a  share  in  the 
relief  granted  by  the  court  in  its  decree.  It  is  evident  that,  under 
this  aspect  of  the  matter,  a  slight  affirmative  act  of  assent  and 
adoption  may  be  sufficient  if  the  person  is  then  willing  and  does 
contribute  his  share  to  the  expenses  of  the  litigation.  The  nature 
of  the  cause  of  action  may  be  such  that,  if  the  relief  is  granted 
at  all,  it  will  necessarily  inure  to  the  benefit  of  all  who  may  be  sit- 
uated in  the  same  position  as  the  actual  plaintiff.  On  the  other 
hand,  the  cause  of  action  may  be  such  that  a  separate  application 
will  be  necessary  to  bring  each  person  within  the  operation  of  the 
judgment,  although  the  decision  made  in  one  case  may  control  that 
in  all  others  ;  as,  for  example,  in  a  creditors'  suit  to  set  aside  fraud- 
ulent transfers  of  the  debtor's  land,  and  let  in  the  liens  of  the  plain- 
tiffs' judgments,  a  separate  action  of  the  court  is  necessary  in 
the  case  of  each  judgment  creditor,  in  order  that  he  may  reap  the 
benefit  of  the  general  decision  pronouncing  the  debtor's  transfer 
to  be  void. 

§  399.  In  the  second  place,  the  question  may  be  whether  the 

1  Flint  V.  Spurr,  17  B.  Mon.  499,  513. 


438  CIVIL   KEMEDIES. 

specified  individual  wlio  is  one  of  those  represented  by  the  actual 
plaintiff,  is  concluded  and  bound  by  the  judgment  rendered  in 
the  action.  This  question  will  generally  arise  at  a  subsequent 
time,  and  in  another  action  brought  by  or  against  the  individual, 
and  involving  the  same  issues  as  those  embraced  in  the  former 
controversy.^  Is  this  person  bound  by  the  former  judgment  ? 
Of  course  he  is  not  bound  unless  he  was  practically  a  party  to 
the  proceeding ;  the  plainest  principles  of  common  justice  refuse 
to  hold  a  man  concluded  if  he  has  not  had  "  a  day  in  court." 
When  the  matter  is  presented  in  this  aspect,  the  strict  rule  of 
the  equity  courts  first  above  stated  must  be  controlling.  If  the 
subsequent  proceeding  is  a  hostile  one  against  the  person,  the 
former  adjudication  cannot  be  relied  upon  as  an  estoppel  or  as 
conclusive,  unless  he  had  affirmatively  taken  the  steps  which 
made  him  an  actual  party  by  adopting  the  suit  with  all  its  bur- 
dens and  benefits,  or  unless,  after  having  had  notice,  and  an 
opportunity  of  coming  in  and  making  himself  such  a  party,  he 
had  refused  or  neglected  to  do  so.  If,  however,  this  subsequent 
proceeding  is  on  behalf  of  the  person,  set  in  motion  by  him,  the 
same  doctrine  must  apply ;  he  cannot  under  exactly  the  same 
circumstances  claim  and  receive  the  benefits  of  the  former  liti- 
gation, but  disclaim  and  be  freed  from  its  burdens  and  disa- 
bilities. 

§  400.  The  conclusion  to  which  I  arrive  from  the  foregoing 
discussion  may  be  summed  up  as  follows  :  There  may  be  a  marked 
difference  in  the  manner  of  enforcing  the  rule,  or  even  in  the 
rule  itself,  depending  upon  the  position  of  the  litigation,  and  the 
situation  of  the  person  who  invokes  its  aid  or  against  whom  it  is 
invoked.  If  the  prior  suit  is  still  pending,  and  the  purpose  of 
the  claimant  who  belongs  to  the  class  of  persons  represented  by 
the  actual  plaintiff  or  defendant,  be  to  take  a  practical  part  in 
the  controversy,  or  to  share  the  benefit  of  the  judgment  which 
has  been  or  may  be  rendered,  his  mere  act  of  making  the  claim, 
coupled  with  a  willingness  to  bear  his  share  of  the  expenses, 
will  be  of  itself  a  sufficiently  positive  and  affirmative  act  to 
make  him  a  party  to  the  proceeding  and  entitle  him  to  his  per- 
sonal relief.     Even  in  this  case,  however,  the  action  may  be  of 

1  Tliis  was  the  situation  of  tlie  parties     wliich  the  strict  equity  rule  was  enforced, 
and  of  tiie  facts  in  tiie  case  cited  in  a     Stevens  v.  Brooks,  '22  Wise.  6'J5. 
preceding  paragraph  from  Wisconsin,  in 


ONE  SUING  ON  BEHALF  OF  OTHERS.  439 

such  a  nature  and  the  judgment  of  such  a  character,  that  a  sep- 
arate order  or  adjudication  of  the  court  will  be  necessary  in 
order  to  determine  the  particular  rights  under  the  general  decree 
of  each  party,  and  to  award  to  him  his  special  portion  of  the 
general  relief.  The  case  already  mentioned  of  the  different 
judgment  creditors  interested  in  the  result  of  an  ordinar\'  cred- 
itors' suit,  is  a  sufficiently  illustrative  example.  If,  however,  the 
prior  suit  has  been  terminated,  and  the  question  arises  in  a  sub- 
sequent controversy,  and  involves  the  conclusive  effect  of  the 
former  adjudication  upon  the  class  of  persons  represented  by  the 
actual  parties,  in  order  that  such  judgment  should  be  conclusive 
upon  any  particular  person  of  the  class  either  in  his  favor 
or  against  him,  there  must  have  been  the  previous  formal  act  on 
his  part  of  applying  to  the  court,  and  an  order  thereon  making 
him  a  party  to  the  action,  so  that  his  name  should  have  appeared 
in  some  manner  upon  the  record ;  or  it  must  be  shown  that  he 
had  notice  of  the  proceedings,  and  an  opportunity  to  unite  in 
them  of  which  he  neglected  or  refused  to  avail  himself.  These 
views  and  conclusions  reconcile  the  decisions  which  at  first  sight 
appear  to  be  conflicting,  and  they  present  a  practical  and  har- 
monious rule  of  procedure.^ 

§  101.  It  has  already  been  stated  that  the  complaint  or  petition 
should  contain  averments  which  bring  the  action  within  one  or 
the  other  of  the  cases  mentioned  in  the  section  of  the  codes. 
The  allegations  showing  the  existence  of  a  common  or  general 
interest  in  the  questions  at  issue  in  the  one  case,  or  the  imprac- 
ticability on  account  of  numbers  of  bringing  all  the  persons 
before  the  court  in  the  other,  should  be  positive  and  specific,  so 
that  if  denied,  an  issue  may  be  raised  upon  them.     It  is   not 

'  See,  on  this  subject,  Story's  Eq.  PI.  report  of  such  applicants,  the  final  decree 

§§  99,  106;  Daviil  v.  Frowd,  1  Myl.  &  K.  is  made.     After  sucii  final  decree,  the  de- 

200  ;  Gillespie  v.  Alexander,  3  Riiss.  130  ;  fendant  will,  in  general,  be  protected.  But 

Farrell  r.  Smith,  2  Ball  &  B.  837;  Cock-  if  any  creditor,  or  other  person  represented 

burn  I'.  Thompson,  16  Ves.  327;  Good  v.  by  the  actual   plaintiff,  should  not  have 

Blewit,  19  Ves.  336,  33') ;  Leigh  v.  Thomas,  received  notice,  and  there  was  no  default 

2  Ves.  312,  313  ;  Hendricks  r.  Robinson,  or  want  of  diligence  on  his  part,  he  may 

2  Johns.  Cli.  283,  296  ;  Hallett  v.  Hallett,  be   permitted    to  recover  his  share,  not 

2  Paige,  18,  19.     The  equity  practice  in  from  the  defendant  in  the  original  action, 

this  class  of  cases  is,  upon  rendering  the  but  from   those  who  had  united  with  the 

interlocutory  decree,  to  advertise  for  all  plaintiff,  and  received  in  the  distribution 

the  represented  persons  to  appear  before  more  than    the   amount   to   whicii    they 

a  master  within  a  specified  time  and  es-  were    justly    entitled.       See     David    v. 

tablish  their  claims,  and  make  themselves  Frowd,  1  M.  &  K.  200. 
parties  to  the  suit ;  and  upon  the  master's 


440  CIVIL    REMEDIES. 

necessaiy,  however,  that  the  persons  who,  it  is  alleged,  have 
the  common  or  general  interest,  or  who,  it  is  said,  are  so  numer- 
ons  tliat  they  cannot  all  be  brought  before  the  court,  should  be 
named,  nor  be  described  with  particularity ;  nor  is  it  necessary 
that  they  should  be  an  association  or  special  class,  or  be  described 
as  such.^  The  general  averment  descriptive  of  the  persons  as  a 
whole  is  enough  ;  and  the  question  whether  any  jjarticular  indi- 
vidual is  included  within  it  will  arise,  and  must  be  decided  upon 
his  application  to  be  admitted  as  a  participant  in  the  suit  while 
in  progress,  or  in  the  relief  after  judgment.  If  any  opposition  is 
made  to  his  application,  the  matter  will  be  sent  to  a  master  or 
referee  to  hear  and  report,  and  upon  his~  report  the  court  will 
make  the  proper  order  admitting  or  rejecting  the  applicant.'^ 

SECTION     NINTH. 

PERSONS    SEVERALLY    LIABLE    UPON    THE    SAME    INSTRUMENT. 

§  402.  The  subject-matter  of  tliis  section  has  already  been 
treated  in  a  general  manner  in  the  discussions  relating  to  joint, 
joint  and  several,  and  several  liabilities,  and  to  actions  thereon, 
and  to  the  changes  wrought  iu  the  common-law  rules  regulating 
the  same,  which  are  contained  in  the  seventh  section  of  this 
chapter.  It  is  of  so  great  importance,  however,  and  the  statutory 
provisions  have  made  so  sweeping  an  alteration  in  the  ancient 
law,  and  withal  there  is  so  marked  a  difference  in  the  special 
legislation  of  the  State  codes  upon  this  particular  topic,  that  the 
sul)ject  demands  an  independent  and  thorough  examination. 
The  statutory  provisions  themselves  must  be  separated  into  two 
classes.  The  first  class,  which  is  found  in  most  of  the  codes, 
embraces  special  rules  relating  only  to  persons  severally  liable 
upon  the  same  instrument,  and  the  language  which  embodies  the 
enactment  is  substantially  alike  in  all  the  statutes  which  contain 
the  provision  at  all.  The  second  class,  which  is  found  in  a  por- 
tion only  of  the  codes,  is  much  more  sweeping  and  radical  in  its 
changes  ;  it  embraces  rules  relating  to  joint,  joint  and  several, 
and  several  liabilities  arising  upon  all  contracts;  while  the  lan- 
guage used  by  the  legislatures  is  not  the  same  in  any  two  of  the 
codes. 

1  Sourse  v.  Marshall,  23  InJ.  19i.  2  Stevens  v.  Brooks,  22  Wise.  695. 


PERSONS   SEVERALLY   LIABLE   ON    THE   SAME   INSTRUMENT.        441 

§  403.  I  quote  these  two  classes  of  provisions  separately.  — 
First  Class.  "  Persons  severally  [and  immediately,  Ind.]  liable 
upon  the  same  obligation  or  instrument,  including  the  parties  to 
bills  of  exchange  and  promissory  notes  [and  sureties  on  the  same 
or  separate  instruments,  CaL,  iVey.],  may  all  or  any  of  them  be 
included  in  the  same  action  at  the  option  of  the  plaintiff."  ^  In 
Kentucky,  the  section  is  somewhat  varied,  and  reads  as  follows: 
"  Persons  severally  liable  on  the  same  contract,  including  the 
parties  to  bills  of  exchange  and  promissory  notes,  common  orders 
and  checks,  and  sureties  on  the  same  or  separate  instruments, 
may  all  or  any  of  them,  or  the  rej^resentatives  of  such  as  may 
have  died,  be  sued  in  the  same  action  at  the  plaintiff's  option."  ^ 
—  Second  Class.  The  Missouri  code  contains  the  following: 
"  Every  person  who  shall  have  a  cause  of  action  against  several 
persons,  including  parties  to  bills  of  exchange  and  promissory 
notes,  and  be  entitled  by  law  to  a  satisfaction  therefor,  may  bring 
suit  thereon  jointly  against  all  or  as  many  of  the  persons  liable 
as  he  may  think  proper,  and  an  executor  or  administrator  or 
other  person  liable  in  a  representative  character  may  be  joined 
with  others  originally  liable  at  the  option  of  such  person."  ^ 
According  to  the  last  revision  of  the  California  code,  "  All  per- 
sons holding  as  tenants  in  common,  joint  tenants,  or  coparceners,  or 
any  number  less  than  all,  may  jointly  or  severally  commence  or 
defend  any  civil  action  or  proceeding  for  the  enforcement  or 
protection  of  the  rights  of  such  party."  *  A  section  is  found  in 
the  Nevada  code  nearly  the  same  as  the  foregoing  in  most  re- 
spects, but  with  one  very  marked  difference  :  "  Tenants  in  com- 
mon, joint  tenants,  or  copartners,  or  any  number  less  than  all, 
may  jointly  or  severally  bring  or  defend,  or  continue  the  prose- 
cution or  defence  of  any  action  for  the  enforcement  of  the  rights 
of  such   person  or  persons."  ^     The  changes  in  the  common  law 

1  New    York,    §    120;  Kansas,   §39;  3  Missouri,  §  7. 

Oregon,    §    36;    Nevada,    §    15;    South  *  California,  code  of  1872,  §  384 ;  orig- 

Caroiina,  §  143  ;  California,  §  383  ;  Min-  inally  statute  of  1857,  p.  62. 

nesota,  §  35;   Wisconsin,  ch.  123,  §  21;  ^  Nevada,  §  14.     This  section  is  plainly 

Nebraska,  §  44  ;  Florida,  §  71 ;  Ohio,  §  38  ;  copied  from  the  California  statute  of  1857. 

Indiana,  §  20  ;  North  Carolina,  §  63  ;  Da-  The  change  from  "  coparceners  "  to  "  co- 

cotah,  §    73;  Washington,  §    16;  Idaho,  partners  "  is  remarkable.     Theuseoftlie 

§    15;  Wyoming,   §  43;    Montana,  §   15.  word  "coparceners"   was    natural,   per- 

The  provision  in   Idaho,  Wyoming,  and  haps,  though  doubtless  entirely  unneces- 

Montana  is  the  same  as  in  California  and  sary  in  the  earlier  enactment,  for  certain'y 

Nevada.  no  estate  in  "  coparcenery  "  exists  in  Cali- 

'■*  Kentucky,  §  38.  fornia.     The  word  used  in  the   Nevada 


442  CIVIL   REMEDIES. 

made  by  the  Iowa  and  Kentucky  codes  are  radical  and  complete. 
In  the  former  :  "  When  two  or  more  persons  are  bound  by  con- 
tract or  by  judgment,  decree,  or  statute,  whether  jointly  only,  or 
jointly  and  severally,  or  severally  only,  and  including  the  parties 
to  negotiable  paper,  common  orders,  and  checks,  and  sureties  on 
the  same  or  separate  instruments,  or  by  any  liability  growing  out 
of  the  same,  tlie  action  thereon  may,  at  the  plaintiff's  option,  be 
brought  against  all  or  any  of  them.  When  any  of  those  so 
bound  are  dead,  the  action  may  be  brought  against  any  or  all  of 
the  survivors,  with  any  or  all  of  the  representatives  of  the  de- 
cedents, or  against  any  or  all  of  such  representatives.  An  action 
or  judgment  against  any  one  or  more  of  several  persons  jointly 
bound,  shall  not  be  a  bar  to  proceedings  against  the  others."  ^ 
The  corresponding  section  of  the  Kentucky  code  differs  from 
this  verbally  rather  than  substantially  :  "  When  two  or  more 
persons  are  jointly  bound  by  contract,  the  action  thereon  may,  at 
the  plaintiff's  option,  be  brought  against  all  or  any  of  them. 
When  any  of  the  persons  so  bound  are  dead,  the  action  may  be 
brought  against  any  or  all  of  the  survivors,  with  the  represen- 
tatives of  any  or  all  of  the  decedents,  or  against  the  latter  or  any 
of  them.  When  all  the  persons  so  bound  are  dead,  the  action 
may  be  brought  against  the  representatives  of  all  or  of  any  of 
them.  An  action  or  judgment  against  one  or  more  of  several 
persons  jointly  liable,  shall  not  be  a  bar  to  proceedings  against 
the  others."  ^  Substantially,  the  same  change  in  the  common 
law  is  made  by  the  North  Carolina  code.^ 

§  404.  These  two  classes  of  legislative  enactments  must  be 
examined  separately.  The  provisions  of  the  first  class  relate 
solely  to  persons  severally,  as  opposed  to  those  jointl}^  or  jointly 
and  severally  liable.  The  term  "  severally  liable  "  has  long  had 
a  Avell-known  technical  meaning  in  the  law,  and  is  plainly  used 

code,  unless  treated  as   a  mistake,  pro-  to  .joint    liability   on    contract   in   those 

duces    a    most   violent    and   exceptional  States. 

change  in  the  i)rior  law.     Tlie  language  i  Iowa,  §  2550. 

is  not  broad  enough  to  cover  all  joint  lia-  2  Kentucky,  §  39. 

bilities  arising  from  contract;  tlie  single  '  CodeofNortli  Carolina,  §  6.3 m.    "In 

case  of  partnersiiii)  liability  is  excepted,  all  cases  of  joint  contract  of  copartners  in 

The  same  is  found  in  the  code  of  Wyo-  trade,  or  otiiers,  suits  may  he  brougiit  and 

ming,  §  42.      See  also  Kans.  Gen.   Stat,  prosecuted  on  the  same  against  all  or  any 

(1868),ch.  21,  §§  1-4,  and  Mo.  Wag.  Stat.,  number  of  tlie  persons  making  such  con- 

vol.    1,    p.    2'i'.),   §§    1-4,    which    entirely  tract."     See  Merwin  v.  Ballard,  65  N.  C. 

abrogate  all  the  common-law  doctrines  as  168. 


PERSONS   SEVERALLY   LIABLE   ON   THE   SAME   INSTRUMENT.        443 

with  that  meaning-  in  this  connection.  The  modification  of  the 
former  rules  made  by  this  section  is  therefore  quite  restricted. 
Again,  this  several  liability  must  arise  from  the  fact  that  the 
persons  are  all  parties  to  one  single  instrument,  except  that  in  a 
few  States  sureties  upon  separate  instruments  are  also  included. 
This  latter  clause  is  probably  intended  to  cover  the  case,  which 
is  not  infrequent,  of  two  or  more  official  or  other  bonds  given  on 
behalf  of  the  same  principal  and  to  the  same  obligee,  and 
intended  to  secure  the  same  object,  the  rights  and  obligations  of 
the  sureties  thence  arising  being  the  same  as  if  they  had  all 
executed  a  single  undertaking.^  In  the  third  place,  there  is  no 
limit  npon  the  kind  of  contract  from  which  this  several  liability 
may  arise,  provided  it  is  in  writing.  The  broad  language  of  the 
clause  includes  any  and  every  species  of  written  contract.  The 
instances  given  of  bills,  notes,  checks,  orders,  &c.,  are  illustra- 
tions merely,  and  do  not  restrict  the  operation  of  the  section  to 
themselves.  The  result  is,  that  the  provision  as  a  whole  has  the 
same  force  and  effect  in  all  the  States  of  whose  codes  it  forms  a 
l^art,  with  the  single  exception,  already  noticed,  in  reference  to 
sureties  upon  separate  instruments.  Fourthly,  no  change .  is 
made  in  the  prior  rules  of  law  which  define  the  nature  of  "  several 
liability."  The  contracts  from  which  such  a  liability  arises,  and 
the  cases  in  which  it  exists,  are  left  as  the  codes  found  them. 
Finally,  the  only  change  made  by  the  section  is,  that  while  the 
common  law  required  a  separate  action  by  the  creditor  against 
each  one  of  the  persons  thus  severally  liable,  he  is  now  per- 
mitted at  his  option  to  sue  all,  one,  or  any  of  them.  How  far 
the  provision  permits  the  joinder  of  the  personal  representatives 
of  deceased  parties  with  any  or  all  of  the  survivors  as  codefend- 
ants,  must  be  a  matter  for  judicial  construction  ;  that  found  in 
the  Kentucky  code  removes  all  possible  doubt  b}^  expressly 
authorizing  such  a  proceeding.  The  second  class  of  provisions 
goes  to  tlie  root  of  the  matter,  and  practically  destroys  all  dis- 
tinction between  joint,  joint  and  several,  and  several  liabilities, 
in  respect  of  actions  against  the  original  parties,  and  of  those 
against  the  survivors  and  the  representatives  of  such  as  liave 
died.  These  enactments  are  so  express,  so  full,  and  so  plain  in 
their  language,  that  they  leave  very  little  room  for  forensic 
exposition  or  judicial  interpretation. 

1  See  Powell  v.  Powell,  48  Cal.  234. 


444  CIVIL   REMEDIES. 

§  405.  From  this  analysis  of  the  language  I  proceed  to  the 
judicial  interpretation  which  has  been  put  upon  it.  Most  of  the 
conclusions  contained  in  the  foregoing  paragraph  result  so  plainly 
from  the  express  terms  of  the  statute,  that  no  doubt  can  be 
entertained  of  their  correctness,  and  no  necessity  can  arise  for 
judicial  construction.  It  will  be  found,  therefore,  that  the  deci- 
sions based  upon  this  section  have  generally  turned,  not  upon  any 
question  as  to  its  meaning,  but  upon  points  of  the  former  law. 
Nearly  all  of  these  cases  will  be  seen,  Avhen  we  get  at  the  ratio 
decidendi^  to  have  determined  either  that  the  parties  were  or 
were  not  severally  liable,  or  that  they  were  or  were  not  liable 
upon  the  same  instrument.  These  points,  I  sa}^  are  preliminary 
only,  and  do  not  belong  to  any  exposition  of  the  statutory  pro- 
vision itself ;  they  simply  settle  the  question  whether  or  not  the 
particular  case  falls  within  its  terms.  The  decisions  to  be  cited 
will  illustrate  this  statement,  and  show  its  correctness.  In  a 
leading  case,  giving  a  construction  to  the  section,  the  New  York 
Court  of  Appeals  said :  "  It  relates  to  several,  and  not  to  joint 
liabilities.  The  latter  did  not  require  the  aid  of  a  special  pro- 
vision. It  relates  in  terms  to  cases  where  a  plurality  of  persons 
contract  several  obligations  on  the  same  instrument."  ^  The  Su- 
preme Court  of  Wisconsin  has  expressed  itself  to  the  same  effect. 
"  The  language  of  this  statute  is  very  clear  and  positive,  and  no 
doubt  can  exist  as  to  its  meaning.  It  has  changed  the  rule  of 
the  common  law  with  respect  to  the  actions  which  it  mentions. 
No  demurrer  can  now  be  sustained  for  the  nonjoinder  or  mis- 
joinder of  parties  defendant  where  a  part  only  of  the  persons 
severally  liable  are  included  in  the  action,  and  the  rest  omitted, 
and  that  fact  appears  on  the  face  of  the  complaint."  ^ 

§  406.  The  terms  of  the  statute  are  so  broad  and  unrestricted, 
that  they  include  every  kind  and  form  of  written  contract  upon 
which  the  parties  thereto  are  made  severally  liable.  It  is  not 
necessary  that  they  should  be  bound  for  the  same  identical  de- 
mand or  debt,  nor  that  each  should  be  responsible  for  the  aggre- 
gate amount  of  all  their  several  liabilities.  In  other  words,  it  is 
not  necessary  that  the  judgment  should  be  a  joint  one  for  the 
same  single  debt,  nor  even  a  separate  judgment  against  each  for 
that  one  sum,  nor,  as  it  would  seem,  a  separate  judgment  against 

1  Carman  v.  Plass,  23  N.  Y.  286,  287,  ^  Decker  i-.  Trilling,  24  Wise.  610, 
per  Deiiio  J.  612,  per  Dixon  C.  J. 


PERSONS    SEVERALLY    LIABLE    ON    THE    SAME    INSTRUMENT.         445 

each  for  the  same  sum.  If  a  contract  should  be  made  by  a  num- 
ber of  promisors,  l)y  which  each  bound  himself  in  an  amount 
different  from  that  of  all  the  others,  the  liability  would  plainly 
be  several,  and  the  agreement  itself  would  be  eml)raced  within 
the  terms  of  the  section.  The  Supreme  Court  of  Kentucky  has 
used  the  following  language  in  reference  to  such  a  contract. 
"  In  this  case  there  is  but  one  contract,  and  it  is  the  same  con- 
tract between  the  same  parties,  but  several  as  to  its  obligation. 
And  neither  the  language  nor  the  presumed  object  of  the  sec- 
tion can  be  constructively  restricted  to  a  several  contract 
binding  each  separate  obligor  for  the  whole  amount  of  their 
aggregate  liabilities.  The  letter  of  the  section  certainly  author- 
izes no  such  restriction  ;  and  the  policy  of  avoiding  a  vexatious 
multiplicity  of  actions  for  the  breach  of  the  same  contract, 
would  ap[)ly  equally  to  every  contract  made  at  one  and  the  same 
time  by  the  same  parties  severally  liable  upon  it."  ^  Upon  this 
doctrine  a  joint  action  was  sustained  against  twenty-seven  persons 
who  had  executed  the  following  undertaking :  "  We  the  under- 
signed agree  to  become  bound  to  A.  as  sureties  for  B.,  each  for 
the  sum  of  $100,  for  any  goods  he  may  buy  of  said  A.,  each  of 
us  to  be  bound  for  $100  and  no  more,  it  being  the  true  intent 
and  meaning  that  each  incurs  for  himself  a  separate  liability  for 
$100."  -  Although  such  an  action  is  brought  against  all  the 
debtors,  and  thus  appears  to  be  joint,  the  judgment  of  course  is 
not  joint  but  separate,  that  is,  against  each  for  the  amount  of 
his  own  liability.  It  could  certainly  make  no  difference  in  the 
principle  if  the  parties  to  such  an  agreement  each  undertook  a 
different  amount  of  liability  instead  of  all  incurring  the  same. 
These  views  have  been  approved,  and  it  has  been  expressly  held 
that  when  per.sons  are  bound  for  separate  sums  by  the  same 
instrument,  and  are  sued  jointly,  a  separate  judgment  should  be 
entered  against  each  for  the  amount  of  his  individual  indebted- 
ness.^ The  case  thus  resembles  the  ordinary  contract  of  sub- 
scription, which  in  accordance  with  the  principle  of  the  decisions 
above  quoted  would  clearly  be  embraced  within  this  section. 

§  407.  The  question  has  been  raised  whether  in  an  action, 
under  this  provision  of  the  codes,  against  all  or  some  of  the  per- 
sons  thus   severally  liable  upon  the  same   instrument,   a  joint 

1  Wilde  V.  Haycraft,  2  Duval,  309,  311,         2  ibid, 
per  Robertson  J.  *  People  v.  Edwards,  9  Cal.  286. 


446  CIVIL    REMEDIES. 

judonient  against  the  defendants  can  ever  be  proper,  and  whether 
the  final  determination  of  the  conrt  should  not  be  in  the  form  of 
a  separate  judgment  against  each  for  his  individual  liability.^  It 
has  been  said  that  the  statute  permitting  debtors  severally  liable 
to  be  sued  jointly,  and  the  joint  action  brought  in  accordance 
therewith,  do  not  make  them  jointly  liable ;  and  it  can  make  no 
possible  difference  in  the  application  of  this  principle,  whether 
each  j)erson  is  severally  bound  on  the  contract  for  the  same  or  for 
a  different  sum.^  An  action  against  the  maker,  and  the  personal 
representatives  of  a  deceased  indorser  of  a  promissory  note  has 
been  sustained  under  this  section,  but  it  was  held  that  a  joint 
judgment  against  them  could  not  be  rendered.  This  ruling  was 
placed  upon  the  ground  that  tlie  judgment  against  one  must  be 
de  bonis  pvopriis,  and  against  the  other  de  boriis  testatoris?  The 
whole  subject  has  been  ably  and  exhaustively  treated  by  the 
Supreme  Court  of  Wisconsin,  and  I  shall  quote  their  discussion 
and  conclusions.  The  action  was  upon  a  joint  and  several  prom- 
issory note,  the  plaintiff  electing  to  treat  it  as  several,  and  pro- 
ceeding to  sue  two  only  of  the  five  makers.  He  had  obtained  a 
joint  judgment  for  the  amount  of  the  note  against  both,  and  each 
was  of  course  liable  for  that  entire  amount.  The  court  say : 
"  Another  objection  is  to  the  form  of  the  judgment.  The  judg- 
ment is  a  joint  one  against  both  of  the  defendants,  instead  of 
being  several  against  each.  It  is  urged  that  this  is  erroneous. 
It  is  contended  that  the  option  given  to  the  plaintiff  to  include  in 
the  action  all  or  any  of  the  persons  thus  severally  liable,  is  to 
enable  him  to  accomplish  in  one  action  what  by  the  former  prac- 
tice required  several  actions,  —  that  is,  to  enforce  in  the  action 
the  several  liability  of  each  defendant  in  the  same  manner  as  if 
a  separate  suit  had  been  brought  against  him.  But  for  its  being 
obviated  by  a  provision  of  the  statute  to  which  I  shall  piesently 
refer,  this  objection  would  be  fatal  to  the  judgment.  The  form 
of  the  judgment  is  not  directed  by  the  statute  authorizing  per- 
sons thus  severally  liable  to  be  included  in  the  action.  The 
second  subdivision  of  §  11  of  chapter  124  of  the  Revised  Statutes 

1  The  case  of  an  action  against   the  -  Kelsey  v.  Bradbury,  21   Barb.  531; 

makers  and  indorsers  of  a  note  or  bill  is  Parker  v.  Jackson,  16  Barb.  33. 
special.     A  suit  against  them  resulting  in  ■*  Eaton  v.   Alger,    47    N.   Y.   345 ;    2 

a  joint  judgment  for  the  amount  due,  is  Keyes,  41;  Cliurchill   v.  Trapp,   3  Abb. 

permitted  by  express  statutes  passed  long  Pr.  oOti.     See  also  Burgoyne  v.  O.  L.  Ins. 

prior  to  the  new  procedure.  &  T.  Co.,  6  Ohio  St.  686. 


PERSONS    SEVERALLY   LIABLE   ON    THE    SAME   INSTRUMENT.        447 

of  Wisconsin  ^  has  no  relation  to  the  question,  because,  as  held  by 
the  Court  of  Appeals  in  Pruyn  v.  Black,^  the  words  there  used, 
"  defendants  severally  liable,"  mean  defendants  liable  separately 
from  the  defendants  not  served,  though  jointly  as  respects  each 
other.  And  the  provisions  of  §  26  of  chap.  132  of  the  Revised 
Statutes  of  Wisconsin  ^  do  not  affect  it,  for  the  reason  that  the 
judgment  there  authorized  against  one  or  more  of  several  defend- 
ants is  only  when  a  several  judgment  may  be  proper.  It  seems 
to  me  to  be  left  therefore  for  the  courts  to  determine  according  to 
the  general  principles  of  the  law  governing  the  subject  what  the 
form  of  the  judgment  shall  be  ;  and,  acting  upon  these  principles, 
it  seems  very  clear  to  me  that  the  judgment  should  follow  the 
nature  of  the  claim  established  ;  and  if  that  is  separate  and  sev- 
eral as  against  each  defendant,  then  the  judgment  should  be 
so."  ^  The  judgment  in  this  case  was  not,  however,  reversed, 
since  another  section  of  the  W^isconsin  code  requires  the  court 
to  disregard  any  error  which  does  not  aifect  the  substantial  rights 
of  the  parties. 

§  408.  Although  persons  jointly  and  severally  liable  on  a  con- 
tract are  not  mentioned  in  this  section  of  the  codes,  it  is  within 
the  option  of  the  promisee  or  obligee  in  such  an  agreement  to 
treat  it  as  several,  and  by  his  act  to  render  it  so  to  all  intents 
and  purposes.  A  joint  and  several  contract  has  been  held,  tliere- 
fore,  to  fall  within  the  scope  and  operation  of  the  provision ; 
and  the  creditor,  in  pursuance  of  its  permission,  has  the  election 
to  sue  each  of  the  debtors  singly,  or  to  sue  all,  or  to  sue  any 
number  of  them.^  The  question  might  arise,  whether,  if  he 
elected  to  sue  all,  the  contract  would  be  regarded  as  joint  in 
accordance  w'ith  the  former  practice,  or  whether  by  virtue  of 
this  statutory  enactment  it  would  be  taken  as  several.     I  am  not 

1  This  section  provides  for  taking  *  Decker  v.  Trilling,  24  Wise.  610, 
judgment  against  some  of  tlie  defendants     613,  per  Dixon  C.  J. 

"  severally  liable  "  in  an  action,  when  the  ^  Decker  v.  Trilling,  24  Wise.  610,  612 ; 

others  have  not  been  served.     It  is  the  Clapp  y.  Preston,  15  Wise.  543 ;  Burgoyne 

same  as  ch.  124,  §  18,  of  the  last  revision,  v.  0.  L.  Jns.  &  Tr.  Co.,  5  T)l)io  St.  586; 

2  Truyn  v.  Black,  21  N.  Y.  300.  People  v.  Edwards,  9  Cal.  286  ;  People  i'. 

3  This  section  is  the  general  provision  Love,  25  Cal.  520,  626.  Action  on  a  joint 
relating  to  judgments,  permitting  jiulg-  and  several  bond.  The  court  lield  it 
ment  to  be  rendered  for  some  of  tlie  de-  governed  by  tlie  statute  as  though  several, 
fendants,  and  against  tiie  others,  under  It  has  been  said,  therefore,  that  this  pro- 
certain  circumstances ;  it  corresponds  to  vision  has  in  effect  destroyed  joint  and 
the  present  ch.  132,  §  29.  several  liability  arising  on  single  express 

written  contract. 


448  CIVIL    REMEDIES. 

aware  that  this  question,   which    perhaps   has    little    practical 
importance,  has  been  passed  upon  by  the  courts. 

§  409.  It  has  been  decided  in  many  cases,  and  undoubtedly  the 
weight  of  authority  sustains  this  ruling,  that  a  guarantor  and  the 
principal  debtor  cannot  be  sued  together  in  one  action  ;  even 
though  the  guaranty  be  written  upon  the  same  paper  with  the 
agreement  which  it  undertakes  to  secure.  It  is  said  that  the 
prineifjal  debt  and  the  collateral  undertaking  do  not  constitute 
one  instrument,  and  the  parties  therefore  do  not  come  within  the 
language  of  the  statute.^  A  different  rule,  however,  prevails  in 
Iowa,  and  it  is  there  held  in  a  series  of  cases,  that  the  guarantor 
and  the  principal  debtor  may  be  sued  in  one  action,  since  they  are 
liable  for  the  same  debt,  and  are,  within  the  meaning  of  the 
section,  bound  upon  the  same  instrument.^ 

§  410.  A  surety  or  guarantor  may  be  joined  as  a  codefendant 
with  his  jirincipal  if  the  contract  be  in  such  a  form  and  of  such 
a  nature  that  his  liability  arises  from,  the  same  instrument.  A 
lease  made  between  the  lessor  of  the  first  part,  and  the  lessee  A. 
of  the  second  part,  and  B.  of  the  third  part,  contained  the  usual 
clauses  of  demise  to  A.  and  covenants  on  his  part  to  pay  rent 
&c.,  and  also  a  covenant,  on  the  part  of  B.,  whereby  "he  did,  in 
consideration  of  the  premises  and  of  the  sum  of  one  dollar,  guar- 
antee unto  the  lessor  the  payment  of  the  aforesaid  rent,  and  the 
faithful  performance  of  the  covenants  in  said  lease  contained." 
The  instrument  was  signed  and  sealed  by  all  the  parties.  The 
New  York  Court  of  Appeals  held  that  the  lessor  might,  by  vir- 
tue of  the  section  under  consideration,  maintain  an  action  against 
A.  and  B.  to  recover  a  sum  due  for  rent.  The  case  was  distin- 
guished from  the  others  cited  above,  in  reference  to  ordinary 
guaranties,  since  the  parties  to  this  lease  were  made  liable  by  the 
same  instrument.'^     I  cannot  refrain  from  expressing  the  opinion 

1  Le  Roy  v.  Shaw,  2  Duer,  626;  De  the  guaranty  was  executed  by  the  payee 
Kidder  v.  Schermerhorn,  10  Barb.  638;  upon  a  note  when  he  transferred  tlie  same, 
Allen  r.  Fosgate,  11  How.  Pr.  218;  Plialen  so  that  the  decisions  do  not  go  beyond 
V.  Diiiuee,  4  p].  D.  Smith,  379;  Carman  these  facts.  The  court,  however,  placed 
V.  Plass,  23  N.  Y.  286,  287,  per  Denio  their  judgment  upon  the  broad  ground  as 
J.;  Bondurant  v  Bladen,  19  Ind.  160;  stated  in  the  text,  and  made  no  allusion 
Virden  r.  Ellsworth,  15  Ind.  144.  to  tiie  special  facts,  nor  to  the  jiarticular 

2  Tucker  r.  Shiner,  24  Iowa,  334;  relation  of  the  payee  to  the  maker,  and 
Mix  V.  Fairchild,  12  Iowa,  351  ;  Marvin  v.  the  resemblance  of  such  a  guaranty  to  an 
Adamson,    11    Iowa,   371;    Peildicord   v.  indorsement. 

Whittam,  9  Iowa,  471.    In  all  these  cases         »  Carman  v.  Plass,  23  N.  Y.  286,  287 


BRINGING    IN    NEW    PARTIES,  449 

that  this  is  a  distinction  without  a  difference.  Believing  that 
the  decision  of  the  court  was  right,  it  is  impossible  to  discrim- 
inate the  cases  of  ordinar}^  guaranties  from  it  by  any  valid  and 
substantial  reasons.  B}^  permitting  parties  to  a  contract  resem- 
bling this  lease  to  be  joined  in  a  single  action,  and  refusing  to 
admit  the  same  form  of  suit  against  a  principal  debtor  and  his 
guarantor,  whose  undertaking  is  perhaps  indorsed  upon  the  same 
writing,  the  courts  in  fact  make  the  nature  of  their  obligation  to 
depend  upon  the  position  of  the  written  matter  on  the  jDaper,  and 
not  upon  the  terms  and  ijature  of  their  agreements.  The  rules 
of  procedure,  as  established  by  the  reformed  system,  Avere  never 
designed  to  be  controlled  by  such  considerations.  The  judicial 
decisions  which  illustrate  the  second  class  of  provisions  quoted 
at  the  commencement  of  this  section  have  already  been  cited  and 
discussed  in  section  seventh,  and  need  not  be  repeated  here. 


SECTION  TENTH. 

BRINGING  IN  NEW  PARTIES:   INTERVENING. 

§  411.  As  the  equitable  theory  of  parties  was  adopted  in  the 
new  procedure,  we  should  naturally  expect  some  provision  for 
changing  them,  either  by  addition  or  diminution.  In  accordance 
with  this  expectation,  the  codes  all  contain  sections  prescribing 
rules  more  or  less  elaborate  and  explicit  for  the  guidance  of  the 
courts  in  this  respect.  They  follow  two  different  types.  The 
one  is  the  mere  statement  in  a  statutory  form  of  the  doctrine  as 
to  bringing  in  new  parties  which  Bad  long  prevailed  in  courts  of 
equity,  and  to  it  is  added  a  provision  which  permits  a  summary 
interpleader  to  be  ordered  by  the  court,  upon  motion,  in  certain 
specified  cases,  thus  avoiding  the  delay  and  trouble  of  a  formal 
interpleader  suit.  The  New  York  code  adopted  this  type,  and 
it  has  been  followed,  sometimes  with  slight  variations,  but  often 
with  literal  exactness,  by  most  of  the  State  codes  and  practice 
acts.  The  other  type  is  entirely  different.  It  discards  entirely 
all  the  ancient  notions  ;  it  goes  far  beyond  the  concessions  made 

Where  an  administrator  in  the  course  of    that  all  the  sureties  on  both  bonds  could 
liis  administration  gave  two  bonds  with     be  sued  in  one  action  under  the  special 
different  sureties,  but  the  undertaking  and     provision  of  the  code  in  that  State.  Pow- 
the  liabilities  of   the  sureties   being  the     ell  v.  Powell,  48  Cal.  234. 
same  in  each,  it  was  held,  in  California, 

29 


450  CIVIL    RKMEDIES. 

• 

by  the  equity  courts ;  it  creates,  under  the  title  "  Intervention  " 
or  "  Intervening,"  a  new  division  of  the  procedure.  The  funda- 
mental notion  is,  that  the  person  ultimately  and  really  interested 
in  the  result  of  a  litigation —  the  person  who  will  be  entitled  to 
the  final  benefit  of  the  recovery  —  may  at  any  time,  at  any  stage, 
intervene  and  be  made  a  party,  so  that  the  whole  possible  con- 
trover!;;y  shall  be  ended  in  one  action  and  by  a  single  judgment. 
The  States  which  have  adopted  this  type  to  its  fullest  extent  are 
Iowa  and  California,  and  their  example  has  been  partially  fol- 
lowed in  a  few  others. 

§  412.  The  provisions  which  follow  the  first  form,  as  thus  de- 
sci'ibed,  are  all  represented  by  the  sections  contained  in  the  New 
York  code :  "  The  court  may  determine  any  controversy  be- 
tween the  parties  before  it,  where  it  can  be  done  without  preju- 
dice to  the  rights  of  others,  or  by  saving  their  rights ;  but  Avhere 
a  complete  determination  of  the  controversy  cannot  be  had  with- 
out the  presence  of  other  parties,  the  court  must  cause  them  to 
be  brought  in. 

"  And  when  in  an  action  for  the  recovery  of  real  or  personal 
property  a  person  not  a  party  to  the  action,  but  having  an  interest 
in  the  subject  thereof,  makes  application  to  the  court  to  be  made 
a  party,  it  may  order  him  to  be  brought  in  by  the  proper  amend- 
ment. 

"  A  defendant  against  whom  an  action  is  pending  upon  a  con- 
tract, or  for  specific  real  or  personal  property,  may,  at  any  time 
before  answer,  upon  affidavit  that  a  person  not  a  party  to  the 
action,  and  without  collusion  with  him,  makes  against  him  a  de- 
mand for  the  same  debt  or  property,  upon  due  notice  to  such 
person  and  tlie  adverse  party,  apply  to  the  court  for  an  order  to 
substitute  such  person  in  his  place,  and  discharge  him  from 
liabihty  to  eitlier  party,  on  his  depositing  in  the  court  the  amount  , 
of  the  debt,  or  delivering  the  property  or  its  value  to  such  person 
as  the  court  may  direct ;  and  the  court  may,  in  its  discretion, 
make  the  order."  ^ 

1  New  York,  §  122;  Wisconsin,  eh.  §17;  Washington,  §§  12-14;  Wyoming, 
122,  §§  22-24  ;  Ohio,  §§  40-43  ;  Missouri,  §§  45-47  ;  Montana,  §§  17-ly,  22.  Several 
ch.  110,  art.  8,  §  4;  Minn.  §§  38-41,  116;  of  these  sections  ditfer  somewhat  from 
Kansas,  §§41-44;  Ind.  §§22,23;  Iowa,  the  language  of  tlie  Kew  York  code 
§  2551;  California,  §§  38(3,  389;  South  quoted  in  the  text,  but  the  differences  are 
Carolina,  §  145;  Nebraska,  §§  46-48;  not  material;  they  relate  entirely  to  de- 
Florida,  §  73;  Kentucky,  §§  40,  41;  tails  of  practice,  and  do  not  enlarge  nor 
North  Carolina,  §  05;  Nevada,  §17;  Or-  restrict  tlie  power  conferred  upon  the 
egon,  §§  3y,  40;  Dacotah,  §  75;  Idaho,  courts. 


BRINGING   IN   NEW   PARTIES.  451 

§  413.  The  second  form  of  the  statutory  iDrovision  creating  and 
regulating  the  subject  of  "Intervention"  is  as  follows:  "  Any 
person  who  has  an  interest  in  the  matter  in  litigation,  in  the 
success  of  either  of  the  parties  to  the  action,  or  against  both,  may 
become  a  party  to  an  action  between  other  persons,  either  by 
joining  the  plaintiff  in  claiming  what  is  sought  by  the  petition, 
or  by  uniting  with  the  defendant  in  resisting  the  claims  of  the 
plaintiff,  or  by  demanding  anything  adversely  to  both  the  plain- 
tiff and  the  defendant,  either  before  or  after  issue  has  been  joined 
in  the  cause  and  before  the  trial  commences.  The  court  shall- 
determine  upon  the  intervention  at  the  same  time  that  the  action 
is  decided,  and  the  intervenor  has  no  right  to  delay ;  and  if  the 
claim  of  the  intervenor  is  not  sustained,  he  shall  pay  all  costs  of 
the  intervention.  The  intervention  shall  be  by  petition,  which 
must  set  forth  the  facts  on  which  the  intervention  rests ;  and  all 
the  pleadings  therein  shall  be  governed  by  the  same  principles 
and  rules  as  obtain  in  other  pleadings  provided  fo.r  in  the  code.''  ^ 

§  414.  The  several  clauses  thus  quoted  at  large  relate  to  and 
establish  three  entirely  different  transactions  in  the  conduct  of 
an  action.  Not  a  little  confusion  has  arisen  from  a  neglect  to  keep 
these  three  subjects  separate  ;  the  requisites  of  the  one  have  been 
confounded  with  those  of  another,  and  thus  mistakes  have  fol- 
lowed which  a  little  care  in  examining  the  statute  would  have 
obviated.  The  three  transactions  referred  to  are  the  following  : 
The  first  is  provided  for  in  all  the  codes,  and  is  the  brief 
enactment  of  a  familiar  rule  in  equity.  It  is  the  bringing  in 
additional  parties  by  the  court  when  a  complete  determination  of 

'  Code  of  Iowa  (1873),  §§  2683-2685,  by   complaint  seUing  forth  the  grounds 

sliglitly  changed  in  phraseology  from  the  upon  which  the  intervention  rests,  filed 

former  revisions  of  the  statutes ;  Calitor-  by  leave  of  the  court,  and  served  upon 

nia,   Code  of  1872,  §  387:  "  Any  person  the  i>arties  to  the  action  or  proceeding,wiio 

may  before  the  trial  intervene  in  an  action  may  answer  it  as  if  it  were  an  original 

or  proceeding,  who  has  an  interest  in  the  complaint."    This  provision  is  somewhat 

matter  in  litigation  in  the  success  of  either  changed  from  tlie  original  form  in   the 

of  the  parties,  or  an  interest  against  both,  statutes  of  1854,  ch.  84,  §§  71-74.     It  is 

An  intervention  takes  place  when  a  third  substantially  the  same  as  that  in  Iowa, 

person  is  permitted  to  become  a  party  to  except  that  the  intervenor  must   obtain 

an  action  or  proceeding  between   other  leave  of  the  court  to  file  his  complaint, 

persons,  either  by  joining  the  plaintiff  in  while  in  Iowa  he  files  his  petition  as  a 

claiming  what  is  sought  by  the  complaint,  matter   of    course    at   his   own   election. 

or  by  uniting  with  the  defendant  in  resist-  The  code  of  Washington  Territory,  §§  13, 

ing  the  claims  of  the  plaintifl",  or  by  de-  14,   also   contains   a   provision    identical 

manding  any  thing  adversely  to  both  the  with  that  quoted  above  from  the  Califor- 

plaintiff  and  the  defendant,  and  is  made  nia  statute. 


452  CIVIL    REMEDIES. 

the  controversy  cannot  be  had  M-ithoiit  their  presence.  This  act 
plainly  contemplates  the  fact  that  there  are  already  parties  be- 
fore the  court,  defendants  against  whom  the  plaintiff  has  a  cause 
of  action,  and  is  entitled  to  some  relief.  The  enlarging  the  num- 
ber of  parties,  under  such  circumstances,  is  clearly  not  the  same 
thing  as  the  commencing  a  new  action  because  the  plaintiff  has 
failed  to  make  out  any  cause  of  action  against  those  whom  he  has 
already  sued.  By  whose  desire  or  on  whose  motion  the  addi- 
tional parties  shall  be  brought  in,  the  section  does  not  specify, 
but  the  terms  are  broad  enough  to  include  every  case.  In  the 
majority  of  instances  the  plaintiff  doubtless  applies  for  the  addi- 
tional parties.  Cases  may  and  do  arise  in  which  the  defendant, 
deeming  it  necessary  to  protect  his  own  interests,  makes  the 
application.  Finally,  the  court  may,  on  its  own  motion,  order  in 
the  persons  whose  presence  it  regards  proper  to  a  complete  de- 
termination of  the  issues. 

§  415.  The  second  of  these  transactions,  in  the  progress  of  an 
action,  is  the  bringing  in  and  making  a  party  to  the  suit  a  third 
person  upon  his  own  application,  —  or,  in  the  very  appropriate 
language  of  certain  codes,  the  Intervening  of  a  third  person.  In 
respect  of  this  proceeding  there  is  the  marked  difference  between 
the  two  types  of  statutory  provisions  already  spoken  of.  Most 
of  the  codes,  following  that  of  New  York,  have  legislated  upon 
the  subject  with  great  caution,  and  have  merely  given  a  certain 
extension  to  the  familiar  common-law  practice  of  permitting  a 
landlord  to  come  in  and  defend  an  action  of  ejectment  in  the  place 
of  his  tenant.  The  provision  itself  is  very  brief,  and  by  its  terms 
is  confined  to  actions  for  the  recovery  of  real  or  personal  prop- 
erty. Beyond  a  doubt  it  embraces  all  equitable  actions  in  which 
the  remedy  is  the  recovery  of  real  or  personal  property,  and  is 
not  restricted  to  the  legal  actions  which  correspond  to  the  ancient 
ejectment  and  replevin.  This  short  and  simple  clause  is  the  only 
one  which  authorizes  a  third  person  to  be  made  a  jDarty  upon  his 
own  motion. 

§  416.  Passing  to  the  codes  of  Iowa  and  California,  we  see  that 
Intervening  rises  at  once  into  a  proceeding  of  great  importance. 
It  may  be  resorted  to  in  any  and  all  actions,  and  at  every  stage 
in  the  action  piior  to  the  commencement  of  the  trial.  The  inter- 
venor  may  have  an  interest  with  the  plaintiff,  or  with  the  de- 
fendant, or  one  special  to  himself  and  adverse  to  both  of  the 


BRINGING    IN   NEW   PARTIES.  453 

original  parties.  He  does  not  ask  the  privilege  of  intervening, 
and  obtain  that  privilege  by  an  order ;  he  intervenes  as  a  matter 
of  right,  by  filing  and  serving  his  petition  in  the  same  manner  as 
though  he  was  commencing  an  ordinary  action,  and  his  riglits 
are  passed  upon  and  disposed  of,  together  with  those  of  the  plaintiff 
and  defendant,  at  the  trial.  It  is  plain  that  this  is  a  judicial  proceed- 
ing utterly  unknown  before  in  onr  ordinary  courts,  entirely  unlike 
anything  which  had  been  customary  in  the  common  law  or  equity 
tribunals  of  England  or  the  United  States.  Indeed,  it  was  con- 
fessedly borrowed  from  the  procedure  established  by  the  code  of 
Louisiana. 

§  417.  The  third  judicial  transaction  is  the  act  of  a  defendant 
in  procuring  another  person,  not  a  party  to  the  suit,  to  be  substi- 
tuted in  place  of  himself  as  the  party  defendant,  and  himself  to 
be  thereby  discharged  from  all  liability  in  respect  of  the  cause  of 
action,  —  a  special  remedy  long  known  in  another  form  as  an 
Interpleader.  It  should  be  carefully  distinguished  from  each  of 
the  two  former  proceedings.  Unlike  the  second,  the  stranger 
does  not  come  in  on  his  own  motion  ;  unlike  the  first,  the  applica- 
tion can  only  be  made  by  a  defendant.  It  is  confined  in  its  oper- 
ation to  three  kinds  of  actions :  those  brought  to  recover  money 
on  a  contract,  either  debt  or  damages,  those  brought  to  recover 
specific  real  property,  and  those  brought  to  i*ecover  specific  per- 
sonal property.  It  is  a  substitute,  by  means  of  the  summary 
mode  of  a  motion  and  an  order  made  thereon,  for  the  ancient 
equitable  action  called  the  Bill  of  Interpleader.  The  consider- 
ation of  this  subject  does  not  legitimately  fall  within  the  purposes 
of  the  present  work  ;  it  does  not  involve  the  question  who  are 
and  who  are  not  proper  parties,  and  there  is  no  possible  reason 
for  its  being  discussed  in  this  connection  except  that  the  stat- 
utory provision  which  regulates  it  is  immediately  associated  with 
other  clauses  which  do  relate  to  parties.  The  two  other  judicial 
proceedings  will  now  be  examined  with  the  aid  of  such  judicial 
decisions  as  have  explained  their  scope  and  effect. 

§  418.  I.  Bringing  in  Additional  Parties  when  necessary  to  a 
Complete  Determination  of  the  Controversy.  The  issues  between 
the  original  parties  are  to  be  determined,  if  that  can  be  done 
without  prejudice  to  the  rights  of  others,  or  by  saving  the  rights 
of  others  ;  if  this  be  possible,  the  cause  should  be  adjudicated  as 
it  was  presented  for  decision.     If  a  complete  determination  of 


454  ,  CIVIL    REMEDIES. 

the  controversy  cannot  be  had  without  the  presence  of  other 
parties,  the  court  must  cause  them  to  be  brought  in.  The  force 
and  eifect  of  the  whole  provision  depend  upon  the  interpretation 
given  to  the  clause,  "  when  a  complete  determination  of  the  con- 
troversy cannot  be  had  without  the  presence  of  other  parties." 
To  use  the  language  of  an  eminent  judge  which  has  been  repeat- 
edly approved  by  other  courts  in  different  States,  this  clearly 
means,  "  When  there  are  other  persons,  not  parties,  whose  rights 
must  be  ascertained  and  settled  before  the  rights  of  the  parties 
to  the  suit  can  be  determined.  Doubtless  there  are  many  other 
cases  in  which  a  defendant  may  require  other  parties  to  be 
brought  in,  so  that  the  judgment  of  the  court  in  the  action  may 
protect  him  against  the  claims  of  such  other  parties  ;  but  this  is 
his  own  privilege  and  he  may  waive  it."  ^  The  distinction 
between  the  two  conditions  here  spoken  of  is  plain.  In  the  first, 
the  rights  of  the  parties  to  the  record  are  so  bound  up  with  those 
of  others,  that  they  cannot  be  ascertained  and  fixed  without  at 
the  same  time  ascertaining  and  fixing  the  riglits  of  the  others 
also,  and  to  do  this,  these  others  must  of  course  be  before  the 
court.  In  the  second,  the  issues  between  the  parties  to  the 
record  can  be  decided,  but  the  relations  of  the  defendant  towards 
third  persons  are  of  such  a  nature  that  they  will  be  affected  by 
the  decision,  and  il  would  be  better  and  safer  for  him  if  these 
persons  should  be  brought  in  so  that  liis  relations  might  be  defined 
and  protected  in  the  single  judgment.  Such  a  proceeding  is  not, 
however,  absolutely  necessary  to  the  determination  of  the  con- 
troversy, and  the  defendant  may  waive  his  claim  to  the  additional 
parties  ;  it  is,  in  fact,  a  privilege,  not  an  absolute  necessity.  The 
circumstances  and  relations  to  which  I  allude  were  aptly  described 
and  the  rule  concerning  them  accurately  stated  by  another  judge  : 
"  There  are  cases  in  which  it  is  proper  and  necessary  to  make  a 
person  defendant  upon  the  ground  of  avoiding  a  multiplicity  of 
suits.  His  rights  may  not  be  directly  affected  by  the  decree,  but 
it  may  occur  that  if  the  plaintiff  succeeds,  the  defendant  will 
thereby  acquire  the  right  to  call  upon  the  party  omitted  or  not 
joined  either  to  reimburse  him  or  reinstate  him  in  the  position 
lost  by  the  plaintiff's  success.     And  if  so,   the  person  conse- 

1  McMahon  v.  Allen,  12  How.  Pr.  39,  45,  per  Woodruff  J.;  affirmed,  3  Abb.  Pr.  89. 


BRINGING   IN    NEW   PARTIES.  455 

quently  liable  to  be  thus  affected  should  be  before  the  court  that 
his  liabilitv^  may  be  adjudicated  by  one  proceeding."  ^ 

§  419.  If  the  case  comes  within  the  first  described  condition,  that 
is,  if  there  are  other  persons,  not  parties,  whose  rights  must  be  ascer- 
tained and  settled  before  tlie  rights  of  the  parties  to  the  suit  can  be 
determined,  then  the  statute  is  peremptory ;  the  court  must  cause 
such  persons  to  be  brought  in ;  it  is  not  a  matter  of  discretion 
but  of  absolute  judicial  duty.^  The  enforcement  of  this  duty  does 
not  rest  entirely  upon  the  parties  to  the  record.  If  they  should 
neglect  to  raise  the  question,  and  to  apply  for  the  proper  order, 
the  court,  upon  its  own  motion,  will  supply  the  omission,  and  wiU 
either  directly  bring  in  the  new  parties  or  remand  the  cause  in 
order  that  the  plaintiff  may  bring  them  in.^  The  fact  that  the 
necessary  party  is  a  non-resident  of  the  State  does  not  change 
the  rule  ;  he  must  still  be  brought  in.*  The  addition  of  the 
necessary  party  may  be  made  at  any  stage  of  the  cause.^  The 
action  of  the  court  may  consist  in  requiring  necessary  defendants 
to  be  served  with  process,  who  had  been  named  on  the  record, 
but  not  brought  in  by  actual  service  or  appearance.^ 

§  420.  This  peremptory  duty  does  not  arise  unless  the  condi- 
tions of  the  statute  are  fully  met,  and  the  court  will  not  order  in 
new  parties  defendant,  against  the  will  of  the  plaintiff,  unless 
they  are  actually  necessary  in  the  sense  already  defined.  Thus, 
in  an  action  against  the  indorsers  of  a  note,  the  plaintiff  will  not 
be  compelled  to  bring  in  the  maker  as  a  codefendant."  Nor  is  a 
new  party  to  be  ordered  in  merely  for  the  purpose  of  settling  mat- 
ters between  him  and  the  defendant  in  which  the  plaintiff  has  no 
interest.^     The  statute  will  not  permit  the  plaintiff  to  add  a  new 

1  Camp  V.  McGillicuddy,  10  Iowa,  Vantress,  23  Ind.  533  ;  Johnson  v.  Cliand- 
201,  per  Wright  C.  J.,  citing  1  Dan.  ler,  15  B.  Mon.  584,  589;  Johnston  v. 
Ch.  Pr.  329  ;  s'tory's  Eq.  PL,  §  173 ;  Wiser  Neville,  68  N.  C.  177  ;  Whitted  v.  Nash, 
V.  Blaohly,  1  Johns.  Ch.   437.     He  adds :  66  N.  C.  590. 

"Applying  this  rule,  we  think  it  proper  to         3  Jones    v.    Vantress,    23    Ind.    533; 

direct  Moore  to  be  made  a  party.     If  the  Mitchell  v.  O'Neale,  4  Nev.  504. 

plaintiff  succeeds,  M.   will   be   liable   to  *  Sturtevant  v.  Brewer,  9  Abb.  414 ; 

McG.  either  upon  the  covenants   of  his  s.  c.  on  app.,  4  Bosw.  628. 

deed,  or  to  correct  the  mistake  by  con-  ^  Attorney-General  v.  The  Mayor,  3 

veying  to  him  the  proper  tract  of  land."  Duer,  119. 

See,   also,  Forepaugh   v.  Appold,    17  B.  <>  Powell  v.  Finch,  5  Duer,  666. 

Mon.  632.  ■?  Sawyer  v.   Chambers,   11  Abb.  Pr. 

2  Davis  I'.  The  Mayor,  2  Duer,  663;  110. 

3  Duer,  119;  Shaven,  iirainard,  29  Barb.  8  p^ear  v.  Bryan,   12  Ind.   343,    345. 

25;  Sturtevant  v.  Brewer,  9  Abb.  Pr.  414;     Action  by  the  assignee  of  a  claim  orig- 
Mitchell  V.  O'Neale,  4  Nev.  504;  Jones  v.    inally  due  from  defendant  to  T.    Defend- 


456  CIVIL  nEMi-:DiES. 

defentlant  witJiout  whose  presence  he  could  have  no  recovery  since 
he  would  have  no  cause  of  action.  Such  a  proceeding  would  in 
effect  be  the  commencing  a  new  action,  and  the  statutory  pro- 
vision assumes  that  in  the  pending  action  a  right  to  obtain  a 
recovery  is  set  up  as  against  the  original  defendants.^  The 
plaintiff  cannot  be  allowed,  under  the  color  of  bringing  in  addi- 
tional parties,  to  commence  a  new  action  when  he  would  have 
failed  entirely  in  the  former  one  because  he  had  not  set  up  a  good 
cause  of  action. 

§  421.  I  add  a  few  examples  of  cases  where  parties  have  been 
brought  in;  they  are  designed  merely  as  illustrations.  Additional 
parties  have  been  ordered  in,  in  an  action  for  the  specific  perform- 
ance of  a  contract  executed  by  three  when  two  only  were  at 
first  made  defendants ;  ^  in  an  action  for  an  accounting  between 
two  of  a  larger  number  of  tenants  in  common  of  a  mine,  the 
complete  adjustment  of  the  account  requiring  that  all  the  others 
should  be  added ;  ^  in  a  similar  action  for  an  accounting  between 
partners  in  a  mining  venture,  and  for  a  winding  up  of  the  con- 
cern ;  ■*  in  an  action  upon  a  promissory  note  given  for  the  pur- 
chase price  of  land  in  which  the  vendor  and  holder  of  the  note 
sought  to  enforce  his  lien,  the  heirs  of  the  deceased  vendee,  to 
whom  the  land  had  descended,  were  made  defendants  ;  ^  in  pro- 
ceedings in  aid  of  an  execution  the  judgment  debtor  is  a  neces- 
sary party  and  will  be  brought  in.*^  Under  the  requirements  of 
the  Indiana  code  in  reference  to  assignors  of  things  in  action 
when  transferred  without  indorsement,  if  the  assignor  dies,  the 
assignee  must  make  his  personal  representative  a  defendant  in 
the  action,  or  must  show  that  there  is  none.'^  After  new  parties 
have  been  brought  in,  the  pleadings  must  be  made  to  show  that 

ant  answered,  (1)  set-off  against  T.  before  nation  of  tlie  action.      Fagan  v.  Barnes, 

notice;  (2)  payment  to  T.  before  tlie  assign-  14  Fla.  53,56,  58;  Peck  v.  Ward,  3  Duer, 

nient.     Upon  defendant's  motion,  T.  was  647. 

made  a  coplaintiff,  and  was  ordered   to  ^  McMabon  i-.  Allen,  12  How.  Pr.  39 ; 

reply   to   tlie   answer.      On  appeal,   this  affirmed,  3  Abb.  Pr.  89. 

order  was  reversed,  the  court  stating  the  -  Powell  v.  Finch,  5  Duer,  666.     See 

principle  as  in  the  te.xt.     T.  was  plainly  Johnston  v.  Neville,  68  N.  C.  177. 

not  a  necessary  party;   for  if   the  facts  ^  Mitchell  v,  O'Neale,  4  Nev.  504. 

alleged  were  true,  they  would  have  been  *  Settembre  v.  Putnam,  30  Cal.  490. 

a  good  defence  against  the  original  plain-  ^  Jones  r.  Vantress,  23  Ind.  533. 

lift'.      See   Carr  r.  Collins,  27  Ind    306.  «  Wall  v.  Wliisler,  14  Ind.  228. 

The  court  will  not  order  in  new  defend-  "^  St.  Jolm  v.   Hardwick,  11  Ind.  251. 

ants  against  tlie  will  of  the  plaintiff,  unless  See  Dart  v.  McQuilty,  6  Ind  391. 

their  presence  is  necessary  to  a  determi- 


BRINGING    IN   NEW    PARTIES.  457 

they  are  proper.  When  new  defendants  have  been  added  on  the 
application  of  the  plaintiff,  but  the  complaint,  which  stated  no 
cause  of  action  against  them  originally,  had  not  been  amended  so 
as  to  supply  this  defect,  it  must  be  dismissed  as  against  such 
defendants  at  the  trial,  and  judgment  thereon  rendered  in  their 
favor.  ^ 

§  422.  I  cannot  pass  from  this  subject  without  adding  certain 
remarks  which  are  suggested  by  it,  and  which  concern  the  prac- 
tical administration  of  justice.  The  clause  of  the  codes  under 
examination  is  expressed  in  the  most  general  terms,  containing  no 
exception  nor  limitation.  Whenever  a  necessary  party  has  been 
omitted  by  the  pleader,  the  court  has  the  power  in  any  stage  of 
the  cause  to  remedy  the  defect  by  ordering  him  to  be  brought  in, 
and  the  case  to  stand  over  until  that  is  done.  It  is  almost  uni- 
versally the  fact  that  an  objection  for  the  nonjoinder  of  parties 
is  really  technical,  that  is,  it  does  not  go  to  the  entire  merits  of 
the  controversy.  A  cause  of  action  is  generally  set  forth  against 
those,  or  in  favor  of  those  who  are  actually  made  parties  ;  and  the 
only  error  consists,  not  in  stating  the  cause  of  action  incorrectl}'', 
but  in  omitting  some  of  the  persons  who  are  or  rather  may  he 
beneficiall}^  or  injuriously  affected  by  it.  If  it  be  the  true  pur- 
pose and  design  of  courts  to  administer  justice  between  litigants, 
and  to  ascertain  and  enforce  their  rights  and  obligations,  then  it 
would  seem  to  be  the  primary  duty  of  the  judges  to  decide  every 
cause  as  far  as  possible  upon  the  merits,  and  not  upon  some  tech- 
nical point  which  puts  no  question  at  rest,  but  simply  renders  it 
necessary  to  commence  a  new  suit.  Most  emphatically  does  this 
seem  to  be  their  duty  when  the  statute  has  provided  a  mode  for 
accomplishing  this  result,  and  has  even  required  in  peremptory 
terms  that  this  mode  shall  be  pursued.  Whenever  the  objection 
that  there  is  a  defect  of  necessary  or  proper  parties  is  raised,  it  is 
always  possible  for  the  court  in  a  summary  manner  to  order  them 
in,  and  to  retain  the  cause  for  that  purpose,  and  to  decide  the 
issues  upon  the  merits,  when  the  required  addition  has  been 
effected.  Not  only  is  this  course  possible,  but  it  is  actually 
enjoined  upon  the  courts  by  the  codes.  And  yet  this  most  bene- 
ficial provision  of  the  statutes  is  to  a  great  extent  a  dead  letter. 
I  believe  there  is  hardly  another  section  of  the  codes  so  well  cal- 

1  Smith  V.  Weage,  21  Wise.  440. 


458  CIVIL   REMEDIES. 

Ciliated,  if  it  were  observed  in  its  spirit  and  letter,  to  prevent  the 
success  of  mere  technicalities  and  to  promote  justice  among 
suitors  by  procuring  the  decision  of  causes  upon  their  merits.  In 
marked  contrast  with  the  judicial  practice  which  prevails  to  so 
great  an  extent  in  the  States  which  have  adopted  the  reformed 
American  procedure,  is  a  provision  of  the  new  system  of  prac- 
tice recently  approved  by  the  British  parliament,  which  declares 
that  under  no  circumstances  shall  an  action  be  dismissed,  and  the 
plaintiff  turned  out  of  court  because  he  has  committed  an  error 
in  tlie  selection  of  parties,  either  by  uniting  too  many  or  too  few, 
but  that  in  every  instance  the  court  shall  make  the  proper  amend- 
ment, and  by  striking  out  or  bringing  in,  shall  shape  the  action 
into  a  proper  form  and  condition  for  a  decision  of  its  issues  upon 
the  merits.^  Although  our  codes  do  not  contain  such  a  provision 
in  express  terms,  they  do  contain  all  that  is  necessary  for  the 
adoption  and  enforcement  of  the  same  general  rnle  of  procedure 
by  the  courts.  The  New  York  Court  of  Appeals  has  recently 
made  a  decision  which  is  in  close  agreement  with  the  foregoing 
views.  It  holds  that  if  the  plaintiff  does  not  bring  in  the  neces- 
sary parties  after  an  objection  properly  made,  the  complaint  may, 
in  the  discretion  of  the  court,  be  dismissed,  but  without  prejudice 
to  a  new  action.  An  unqualified  judgment  of  dismissal  in  such 
a  case  is  erroneous.  But  the  complaint  should  not  be  dismissed 
even  without  prejudice,  and  the  plaintiff  thus  put  to  a  new  action, 
when  the  same  end  can  be  reached  by  allowing  the  cause  to  stand 
over  in  order  that  the  plaintiff  may  add  the  necessary  parties.- 

§  423.  II.  Intervening,  or  the  Coming  in  of  Third  Persons  upon 
their  oivn  A^jjylication.  I  proceed  first  to  examine  the  force  and 
effect  of  that  provision  which  is  found  in  most  of  the  codes.  In 
order  that  a  person  may  avail  himself  of  the  permission  given  by 
it,  and  may  make  himself  a  party  to  an  action,  he  need  not  be  a 
necessary  party .^  The  granting  of  such  an  application  lies  in  the 
discretion  of  the  court,  and  it  should  not  be  permitted  if  the 
applicant  is  alread}^  a  plaintiff  in  another  suit  in  which  he  may 
obtain  all  the  relief  he  asks.^  The  application  must  be  made 
before  judgment,  if  made  at  all.^ 

1  Supreme  Court  of  Judicature   Act ;         ^  Carter  v.  Mills,  30  Mo.  432. 
Schedule,  §  9.  *  Scheldt  v.  Sturgis,  10  Bosw.  606. 

2  Sherman  i-.  Parish,  53  N.  Y.  483,  »  Carswell  v.  Neville,  12  How.  Pr. 
4'JO,  491.  445. 


INTERVENTION.  459 

§  424.  The  occasions  on  which  a  third  person  may  intervene 
in  a  pending  action  are  very  few.  The  scope  of  the  provision  is 
exceedingly  limited ;  it  has  been  said  that  its  operation  is  con- 
fined to  those  cases  in  which  a  bill  of  interpleader  would  have 
been  permitted,  under  the  former  practice,  to  accomplish  the 
same  end.^  It  is  certain  that  the  right  to  intervene  can  only  be 
exercised  in  actions  for  the  recovery  of  real  or  personal  property .^ 
It  does  not  exist,  therefore,  in  an  action  to  recover  money ;  as, 
for  example,  in  a  suit  for  wharfage,  persons  claiming  to  be  owners 
of  the  wharf  were  not  permitted  to  intervene  ;  ^  nor  in  an  action 
in  the  nature  of  a  creditor's  suit,  to  reach  a  surplus  of  money  in 
certain  persons'  hands  ;  *  nor  in  an  action  to  dissolve  a  partner- 
ship, and  for  an  accounting  ;  ^  nor  in  any  action  on  contract  for 
the  recovery  of  debt  or  damages.^  In  an  action  to  recover 
possession  of  goods  on  account  of  the  vendee's  fraud,  third  per- 
sons, claiming  to  have  purchased  them  from  him,  cannot  inter- 
vene.'' This  ruling,  however,  is  not  based  upon  the  nature  of 
the  suit  itself,  but  upon  the  absence  of  any  rights  in  the  pro- 
posed intervenors. 

§  425.  The  following  are  some  instances  in  which  an  interven- 
tion has  been  permitted.  In  an  action  for  the  partition  of  lands, 
any  person  having  an  interest  in  the  land  may  intervene  ;  but 
when  the  partition  is  among  the  heirs  and  devisees  of  a  deceased 
owner,  a  judgment  creditor  of  such  decedent  has  no  such  interest 
nor  right.^  In  an  action  to  recover  land,  a  landlord  may  inter- 
vene when  his  tenant  only  has  been  made  a  defendant ;  ^  and  in 
an  action  to  recover  the  possession  of  goods  taken  on  execution, 
the  execution  creditor  may  intervene.^''  In  a  suit  to  compel  the 
specific  performance  of  a  contract  to  convey  land  against  the 
vendor  alone,  a  third  person  alleging  title  in  himself  to  the  same 
land  from  the  same  vendor,  prior  and  paramount  to  that  of  the 
plaintiff,  was  allowed  to  intervene  and  to  defend.  It  was  said 
that  the  intervenor  need  not  be  a  necessary  party,  but  should 

1  Hornby  v.  Gordon,  9  Bosw.  656.  "^  Hornby  v.  Gordon,  9  Bosw.  656. 

2  Kelsey  v.  Murray,  28  How.  Pr.  243 ;  »  Waring  v.  Waring,  3  Abb.  Pr.  246. 
18  Abb.  Pr.  294;  Tallman  v.  Hollister,  See  Baker  y.  Riley,  16  Ind.  479,  which 
9  How.  Pr.  508;  Judd  v.  Young,  7  How.  holds  that  a  person  claiming  title  to  the 
Pr.  79.  whole  land  should  not  be  permitted  to 

^  Kelsey  v.  Murray,  18  Abb.  Pr.  294.  intervene  in  a  partition  suit. 

*  Tallman  v.  Hollister,  9  How.  Pr.  508.  ^  Godfrey  v.  Townsend,  8  How.  Pr. 

s  Dayton  v.  Wilkes,  5  Bosw.  655.  398. 

6.  Judd  V.  Young,  7  How.  Pr.  79.  "»  Conklin  v.  Bishop,  3  Duer,  646. 


460  CIVIL   REMEDIES. 

be  permitted  to  come  in  if  the  judgment  as  between  the  original 
parties  would  cast  a  cloud  upon  his  own  title. ^  Under  the  for- 
mer practice,  no  intervention  was  ever  permitted  in  actions  at 
law,  except  that  in  ejectment  the  landlord  might  make  himself  a 
defendant  in  place  of  his  tenant.^ 

§  426.  The  loiva  and  California  System  of  hiterveniufj.  The 
peculiarities  of  this  proceeding,  the  extent  of  its  innovations  upon 
all  prior  methods,  and  its  usefulness  in  procuring  controversies  to 
be  decided  on  their  merits  in  a  single  action,  will  be  best  shown 
by  detailing  the  facts  of  one  or  two  cases  in  which  it  has  been 
resorted  to.  An  action  in  the  usual  form  was  brought  by  A., 
the  payee  of  two  promissory  notes  made  by  B.,  in  which  B.  made 
no  defence.  At  this  stage  of  the  cause  C.  filed  a  petition  of  in- 
tervention, alleging  the  following  facts :  Before  the  giving  of 
these  notes,  B.  was  indebted  in  the  amount  thereof  to  one  D., 
and  was  not  indebted  at  all  to  the  plaintiff ;  that  the  plaintiff  A. 
caused  B.  to  execute  and  deliver  to  him  these  notes,  and  the 
consideration  thereof  was  B.'s  said  indebtedness  to  D. ;  that  A. 
had  no  authority  to  take  these  notes  in  his  own  name,  but  they 
should  have  been  given  in  the  name  of  D.  ;  that  D.  is  dead,  and 
the  intervenor  C.  is  his  administrator ;  that  the  notes  belong 
really  to  the  estate  of  D.,  and  the  plaintiff  has  no  interest  in 
them,  except  that  the  legal  title  is  in  him.  The  petition  prayed 
that  the  intervenor  might  become  a  party  j)laintiff,  and  that 
judgment  might  be  rendered  in  his  favor  as  administrator  for  the 
amount  of  the  notes  against  B.,  the  maker  thereof.  To  this  peti- 
tion the  original  plaintiff  A.  demurred,  and  the  Supreme  Court 
of  Iowa  held  that  the  case  was  a  proper  one,  within  the  system 
established  in  that  State,  for  an  intervention,  and  that  upon  the 
facts  alleged  in  the  petition  tlie  intervenor  was  entitled  to  judg- 
ment.^    In  another  case.  A.,  claiming  to  be  assignee  of  a  note 


^  Carter   v.    Mills,   80   Mo.    432.      In  with  the  system  which  prevails  in  Iowa 

Summers  v.  Hutson,  48  Ind.  228,  a  third  and    California.     This   intervention    was 

person  was  permitted  to  intervene  in  an  permitted  under  the  general  provision  of 

action  upon  a  promissory  note,  to  make  §  18,  tiiat  "any  person  may  bo  made  a 

himself  a  defendant,  to  set  up  in  his  an-  defendant  who  has  an  interest  in  the  con- 

swer  facts  showing  that  he  was  the  real  troversy  adverse  to  the  plaintiff'." 
party  in  interest,  and  the  equitable  owner  -  Hornby    v     Gordon,    9   Bosw.   656 ; 

of  the  note,  and  the  one  solely  entitled  to  Godfrey  v.  Townsend,  8  How.  Pr.  398. 
its  proceeds,  and  to  recover  thereon  as  ^  Taylor  v.  Adair,  22  Iowa,  279.     See 

against  the  maker,  who  was  the  original  Summers  v.  Hutson,  48  Ind.  228. 
defendant.      This  is  certainly   identical 


INTEBfVENTION.  461 

and  mortgage  executed  to  B.  as  the  payee  and  mortgagee,  com- 
menced an  ordinary  action  for  a  foreclosure.  Thereupon  C.  filed 
a  petition  of  intervention  as  administrator  of  B.,  the  mortgagee, 
in  which  he  denied  that  the  note  and  mortgage  had  ever  been 
assigned  to  A.,  denied  that  the  latter  had  any  interest  or  right 
therein,  and  averred  that  they  were  assets  of  the  estate  of  his 
intestate  B.,  and  prayed  for  judgment  in  his  own  favor  of  fore- 
closure and  sale  against  the  mortgagor  and  other  defendants. 
Upon  a  demurrer  to  this  petition,  the  Supreme  Court  of  Cali- 
fornia held  that  the  intervention  was  entirely  within  the  intent 
and  the  letter  of  the  statute,  and  that  the  intervenor  should  have 
judgment.^  Again,  in  an  action  commenced  to  foreclose  a  mort- 
gage given  (together  with  a  note)  by  a  corporation  which  had 
become  insolvent,  certain  judgment  creditors  of  the  compan}- 
intervened,  alleging  fraud  in  the  execution  of  the  note  and  mort- 
gage by  the  defendant,  and  that  they  were  void  as  against  its 
creditors ;  and  praying  that  they  might  be  adjudged  void,  and 
the  action  to  foreclose  be  dismissed.  The  intervention  of  these 
judgment  creditors  was  sustained,  but  it  was  held,  at  the  same 
time,  that  simple  contract  creditors  had  no  foundation  for  an 
intervention,  since  they  could  not  dispute  the  mortgage.'-^ 

§  427.  Such  being  some  illustrative  examples  of  the  circum- 
stances and  facts  to  which  this  free  and  enlarged  system  of  inter- 
vening has  been  applied,  it  remains  to  state  the  principles  which 
guide  the  courts  in  its  application,  and  which  are  embodied  in 
the  system  itself.  In  making  this  explanation,  I  shall  use,  as  far 
as  possible,  the  very  language  of  the  courts.  In  the  first  of  the 
three  cases  cited  in  the  last  paragraph  —  Taylor  i'.  Adair  —  the 
Supreme  Court  of  Iowa  said :  "  To  the  lawyer  not  thoroughly 
conversant  with  the  sweeping  and  radical  changes  in  procedure 
and  practice  made  by  the  Revision,  the  proposition  that  such  an 
intervention  as  that  sought  in  the  present  instance  is  allowable, 
Avould  be  not  a  little  startling."     The  general  notions  which  lie 

1  Stick  V.  Dickinson,  38  Cal.  608.  R.  appealed  to  tlie  circuit  court,  where 
-  Horn  V.  Volcano  Water  Co.,  13  Cal.  the  whole  matter  was  re-tried.  Pending- 
62.  In  proceedings  to  collect  an  execution  the  second  trial,  two  other  persons,  W.  &C., 
against  R.,  the  plaintiff  garnished  one  intervened,  alleging  that  R.  and  wife  had 
Clark  as  a  debtor  of  R.  Clark  admitted  a  assigned  this  debt  to  them,  and  they  re- 
debt  of  $300,  but  R.  denied  that  it  was  covered  judgment  upon  the  trial.  The 
due  to  himself,  and  alleged  that  it  was  plaintiff  appealing,  this  intervention  was 
due  to  his  wife.  On  trial  before  a  justice  held  proper  under  §  o'237  of  tlie  Revision, 
of  the  peace,  plaintiff  had  a  judgment.  Daniels  v.  Clark,  38  Iowa,  556. 


462  CIVIL   REMEDIES. 

at  the  foundation  of  the  new  system  of  procedure  are  sketched, 
and  are  shown  to  be  in  harmony  with  the  thought  which  finds 
an  expression  in  the  provision  respecting  intervention.  "  A  de- 
sign to  avoid  needless  multiplicity  of  actions  is  everywhere  ap- 
parent in  the  present  system  of  procedure.  Consonant  with  the 
other  provisions  of  this  system  are  those  governing  and  regu- 
lating the  rights  of  third  parties  to  intervene  in  a  pending  action. 
Applying  the  section  of  the  code  (§  2683)  to  the  case  in  hand, 
we  first  inquire  whether  C,  as  the  administrator  of  D.,  has  '  an 
interest  in  the  matter  in  litigation.'  What  was  the  matter  in 
litigation?  Clearly  the  debt  which  B.  owed.  We  say  the  debt 
rather  than  the  note,  for  the  debt  is  the  substance  of  which  the 
note  is  simply  a  memorandum  or  visible  evidence.  Now  this 
debt  is  alleged,  and  on  the  record  admitted,  to  be  owing  by  B. 
to  D.,  and  not  to  the  plaintiff.  If  D.  or  his  administrator  had 
possession  of  the  notes,  though  they  are  made  payable  to  the 
plaintiff  A.,  he  might,  on  showing  his  ownership,  sue  thereon  in 
his  own  name.^  So,  although  the  plaintiff  A.  might  sue  in  his 
own  name  on  the  notes,  they  being  made  payable  to  him,  yet  if 
they  were  in  reality  the  property  of  D.,  the  maker  might  avail 
himself  of  any  defence  he  might  have  against  D.  These  con- 
siderations are  advanced  to  illustrate  how  thoroughly  the  law 
penetrates  beyond  names  and  forms  and  externals  into  the  very 
substance  and  kernel.  Now,  if  the  plaintiff  succeeds,  he  recovers 
that  which,  on  the  assumption  of  the  truth  of  the  petition  of 
intervention,  belonged  to  another  ;  that  which  D.  or  his  repre- 
sentative may  sue  him  for  and  compel  him  to  pay.  He  may  be 
insolvent.  He  may,  if  he  recover  the  judgment,  assign  it.  Why 
should  the  real  owner  of  the  debt  not  have  the  privilege  of  coming 
into  court,  and,  on  establishing  as  against  the  plaintiff  the  right 
to  the  debt,  directly  recover  it  in  his  own  name  ?  This  avoids 
multiplicity  of  actions,  consequent  delay,  and  augmented  costs. 
It  may,  as  above  suggested,  be  the  only  protection  against  the 
insolvency  or  fraud  of  the  plaintiff.  We  are  not  prepared  to 
admit  the  truth  of  the  proposition  advanced  in  support  of  the 
demurrer,  that  the  interest  of  D.  is  of  such  a  nature  that  it  could 
be  asserted  only  in  a  court  of  equity.  Nor  are  we  prepared  to 
admit  the  further  proposition  that  in  a  legal  action  an  intervenor's 

1  Cottle  V.  Cole,  20  Iowa,  481. 


INTERVENTION.  463 

interest  in  the  matter  in  litigation  must  be  a  legal  interest,  to 
entitle  liim  to  the  benefit  of  the  statute.  We  conclude  by  an- 
nouncing it  as  the  opinion  of  the  court  that  this  is  a  case  in 
which  the  applicant  has  shown  that  he  has  '  an  interest  in  the 
matter  in  litigation  against  both  parties,'  —  a  case  in  which  he 
demands  something  adversely  to  both  plaintiff  and  defendant. 
This  interest  is  adverse  to  the  plaintiff,  as  he  claims  against  him 
the  amount  of  the  note  and  debt.  His  interest  is  adverse  to  the 
defendant,  since  he  claims  to  recover  against  him  a  judgment  for 
the  amount  of  the  note."  ^ 

§  428.  The  same  principles  of  interpretation  have  been  adopted 
by  the  Supreme  Court  of  California.  In  the  case  secondly  cited 
—  Stich  V.Dickinson — it  said:  "  The  intervention  in  this  case 
comes  within  the  last  category  of  either  [that  is,  where  his 
interest  is  adverse  to  both  of  the  original  parties].  The  inter- 
venor  certainly  has  no  interest  in  common  either  with  the  plain- 
tiff or  the  defendant  ;  but  we  think  he  has  an  interest  in  the 
matter  in  litigation  adverse  to  both  within  the  meaning  of  the 
section  referred  to.  He  has  an  interest  against  the  pretension  of 
the  plaintiff  to  be  owner  of  the  note  and  mortgage,  and  to  have 
a  decree  of  foreclosure  for  his  benefit,  and  against  the  defendant 
for  the  collection  of  the  debt.  The  subject-matter  of  the  litiga- 
tion is  the  note  and  mortgage,  and  the  right  of  the  plaintiff  to 
have  a  decree  of  foreclosure  and  sale.  The  intervenor  claims 
as  against  the  plaintiff  that  he  and  not  the  plaintiff  is  entitled  to 
the  decree  of  foreclosure  ;  and  as  against  the  defendant,  that  the 
mortgage  debt  is  due  and  unpaid,  and  that  he  is  entitled  to  a 
foreclosure.  In  this  case  the  intervenor  claims  the  demand  in 
suit,  viz.,  the  note  and  mortgage,  and  we  can  perceive  no  reason 
founded  on  the  policy  of  the  law,  which  should  preclude  the 
settlement  of  the  whole  controversy  in  one  action."  ^ 

§  429.  In  Howe  v.  Volcano  Water  Co.,  the  same  court  said : 
"  The  petition  of  the  creditor  R.  does  not  disclose  any  right  on 
his  part  to  intervene ;  it  shows  that  he  was  a  simple  contract 
creditor,  holding  obligations  against  the  company,  but  it  does  not 
show  that  any  portion  of  them  are   secured  by  any  lien  on  the 

1  Taylor  v.  Adair,  22  Iowa,  279,  281,  pie  enumeration  is  an  unanswerable  argu- 

per  Dillon  J.     Judge  Dillon's  summary  of  ment  in  favor  of  the  reform, 
the  leading  and   essential   features   con-  2  Stich  v.  Dickinson,  38  Cal.  608,  per 

tained  in  the  new  system  of  procedure  is  Crockett  J. 
very  accurate  and  complete,  and  his  sim- 


464  CIVIL   REMEDIES. 

mortgaged  premises.  His  intervention  is  only  an  attempt  of  one 
creditor  to  prevent  another  creditor  from  obtaining  judgment 
against  the  common  debtor,  —  a  proceeding  which  can  find  no 
support  either  in  principle  or  authority.  The  interest  mentioned 
in  the  statute  which  entitles  a  person  to  intervene  in  a  suit 
between  other  parties,  must  he  in  the  matter  in  litigatioyi^  and  of 
such  a  direct  and  immediate  character  that  the  intervener  ivill  either 
gain  or  lose  hy  the  direct  legal  operation  and  effect  of  the  judgment. 
The  provisions  of  our  statute  are  taken  substantially  from  the 
code  of  procedure  of  Louisiana,  which  declares  that  '  in  order 
to  be  entitled  to  intervene,  it  is  enough  to  have  an  interest  in  the 
success  of  either  of  the  parties  to  the  suit ; '  and  the  Supreme 
Court  of  that  State,  in  passing  upon  the  term  '  interest,'  thus 
used,  held  this  language  :  '  This  we  suppose  must  be  a  direct 
interest  by  which  the  intervening  party  is  to  obtain  immediate 
gain  or  suffer  loss  by  the  judgment  which  may  be  rendered 
between  the  original  parties ;  otherwise  the  strange  anomaly 
would  be  introduced  into  our  jurisprudence  of  suffering  an 
accumulation  of  suits  in  all  instances  where  doubts  might  be  enter- 
tained or  enter  into  the  imagination  of  subsequent  plaintiffs,  that 
a  defendant  against  whom  a  previous  action  was  under  prose- 
cution might  not  have  property  sufficient  to  discharge  all  his 
debts.  For  as  the  first  judgment  obtained  might  give  a  prefer- 
ence to  the  person  who  should  obtain  it,  all  subsequent  suitors 
down  to  the  last  would  have  an  indirect  interest  in  defeating  the 
action  of  the  first.'  ^  To  authorize  an  intervention,  therefore,  the 
interest  must  be  that  created  by  a  claim  to  the  demand  or  some 
part  thereof  in  suit,  or  a  claim  to  or  lien  upon  the  property  or 
some  part  thereof  which  is  the  subject  of  litigation.  No  such 
claim  or  lien  is  asserted  in  the  petition  of  R.,  and  his  right  to 
intervene  in  consequence  thereof  fails.^     The  petition  of  S.  and 

1  Gasquet  v.  Johnson,  1  Louis.  R.  431.  property  to  pay  all  his  debts  ;  they  have 

2  Brown  v.  Saul,  4  Martin,  n.  s.  434.  not  the  interest  required  by  tlie  statute. 
I  have  collected  in  this  note  tlie  important  Norris's  Heirs  v.  Ogden's  Executors,  11 
Louisiana  cases  on  the  subject  of  inter-  Martin,  455,  460 ;  Kenner's  Syndic  v. 
vention.  Brown  v.  Saul,  4  Martin,  n.  s.  Holliday,  19  Louis.  154,  165 ;  Ardry's 
434  ;  Gasquet  v.  Johnson,  1  Louis.  425,  Wife  v.  Ardry,  16  Louis.  264, 268  ;  Siiields 
431.  In  au  action  hy  a  creditor  against  v.  Perry,  16  Louis.  463,  405;  McMilien  v. 
his  debtor  with  or  witliout  an  attaciunent,  Gibson,  10  Louis.  517,  518;  Kaspillier  v. 
other  creditors  cannot  intervene  on  the  Brownson,  7  Louis.  231,  232;  Fearing 
mere  ground  of  the  debtor's  insolvency  v.  Ball's  Executors,  6  Louis.  685,  690; 
and  the  consequent  insufficiency  of  his  Emerson  v.  Fox,  3  Louis.  178,  182.    An 


INTERVENTION. 


465 


others  stands  upon  a  different  footing.  It  shows  that  they  were 
judgment  creditors  having  liens  by  their  several  judgments  upon 
the  mortgaged  premises  at  the  time  of  the  institution  of  the 
suit.  As  such,  they  were  subsequent  incumbrancers  and  necessary 
parties  to  a  complete  adjustment  of  all  the  interests  in  the  mort- 
gaged premises,  though  not  indispensable  parties  to  a  decree 
determining  the  rights  of  the  other  parties  as  between  them- 
selves. For  such  adjustment  the  court  would  have  been  justi- 
fied in  ordering  them  to  be  brought  in,  either  upon  their  own 
petition,  as  in  the  present  case,  or  by  an  amendment  to  the  com- 
plaint." 1 

§  430.  The  doctrine  thus  stated  by  Mr.  Justice  Field  is  clearly 
the  correct  interpretation  of  the  provisions  contained  in  the  Cali- 


intervenor  cannot  assail  the  sufficiency  of 
the  plaintiff's  attachment  proceedings. 
Curtis  V.  Curtis,  3  Louis.  513,  515.  In 
partition  between  co-owners,  a  third  per- 
son claiming  to  own  the  entire  property  in 
opposition  to  all  the  otlier  parties  cannot 
intervene  to  establish  his  title.  Field 
V.  Mathison,  3  Rob.  88;  Tutorship  of 
Hackett,  4  Rob.  290,  296;  Harrod  v. 
Burgess,  5  Rob.  449 ;  Whittemore  v. 
Watts,  7  Rob.  10;  West  v.  His  Creditors, 
8  Rob.  123  ;  Jones  v.  Jenkins,  9  Rob.  180; 
Succession  of  Baum,  11  Rob.  314,322; 
Hazard  v.  Agricultural  Bank,  11  Rob. 
326,  336.  When  property  of  the  defend- 
ant is  attaclied  or  otherwise  seized  in  the 
suit,  third  persons  claiming  to  own  it,  or 
to  have  a  prior  lien  on  it,  may  intervene. 
See  Yale  v.  Hoopes,  12  La.  An.  460 ; 
Danjean  v.  Blacketer,  13  La.  An.  595 ; 
Gaines  v.  Page,  15  La.  An.  108;  White 
I'.  Hawkins,  16  La.  An.  25 ;  Yale  i\  Hoopes, 
16  La.  An.  311  ;  Letchford  v.  Jacobs,  17 
La.  An.  79 ;  Ledda  v.  Maumus,  17  La. 
An.  314  ;  Field  v.  Harrison,  20  La.  An. 
411 ;  Fleming  v.  Shields,  21  La.  An.  118  ; 
Beckwith  v.  Peirce,  22  La.  An.  67  ;  Michel 
V.  Sheriff,  &c.,  23  La.  An.  53.  But  such 
intervener  cannot  dispute  the  regularity 
of  the  attachment  proceedings.  Yeatman 
V.  Estill,  3  La.  An.  222 ;  Fleming y.  Shields, 
21  La.  An.  118.  And  when  the  attached 
property  has  been  released  on  a  bond,  a 
third  person  cannot  intervene  to  claim  it. 
Wright  W.White,  14  La.  An.  590 ;  Burbank 

30 


V.  Taylor,  23  La.  An.  751.  In  actions  to 
establish  title,  and  to  recover  possession 
of  land  or  chattels,  third  persons  claim- 
ing to  be  owners  as  against  both  plaintiff 
and  defendant  may  intervene.  This  is  a 
very  common  form.  See  Haydel  v.  Bate- 
man,  2  La.  An.  755;  Phelps  v.  Hughes,  1 
La.  An.  320,  321 ;  Gibson  v.  Foster,  2  La. 
An.  503,  504  ;  Baldree  v.  Davenport,  7 
La.  An.  587  ;  Levy  v.  Weber,  8  La.  An. 
439 ;  McCoy  v.  Sanson,  13  La.  An.  455 ; 
Brown  v.  Brown,  22  La.  An.  475.  In  ac- 
tions on  contracts,  persons  claiming  a 
total  or  partial  interest  in  the  recovery  ; 
and,  in  actions  to  reach  a  fund,  persons 
claiming  a  prior  lien  on  or  interest  in  the 
same  property.     O'Brien  v.  Police  Jury, 

2  La.  An.  355  ;  Dubroca  v.  Her  Husband, 

3  La.  An.  331  ;  Moran  v.  Le  Blanc,  6  La. 
An.  113  ;  Bedell's  Heirs  v.  Hayes,  21  La. 
An.  643 ;  Walker  v.  Simon,  21  La.  An.  669 ; 
Taylor  v.  Boedicker,  22  La.  An.  79.  The 
following  are  miscellaneous  cases :  Erwin 
V.  Lowry,  1  La.  An.  276,  278 ;  Devall  v. 
Boatner,  2  La.  An.  271  ;  Thompson  v. 
Mylne,  4  La.  An.  206;  ib.  212;  Union 
Bank  v.  Bowman,  15  La.  An.  271 ;  Clapp 
V.  Phelps,  19  La.  An.  461 ;  Cobb  v.  Depue, 
22  La.  An.  244;  Merritt  v.  Merle,  ib.  257  ; 
State  V.  Dubuclet,  ib.  365;  Aleix  v.  Der- 
bigny,  ib.  385 ;  Cleveland  ;;.  Comstock, 
ib.  597  ;  State  v.  Graham,  23  La.  An.  402 ; 
Moreau  v.  Moreau,  25  La.  An.  214. 

1  Horn  V.  Volcano  Water  Co.  13  Cal. 
62,  69,  per  Field  J. 


466  CIVIL    RKMEDIES. 

fornia  and  the   Iowa   codes,  and   the   opinion   of   Mr.    Justice 
Dillon  is  in  complete  harmony  with  it.  .  The  cases  cited  above 
all  fall  within  this  doctrine.     In  each  the  intervenors  had  a  direct 
interest,  either  in  prosecuting  the  action  and  obtaining-  the  benefit 
of  the  recovery,  or  in  defending  the  action  and  entirely  defeat- 
ing the  recovery.     If  the  intervener  claims  to  be  the  only  one 
entitled  to  the  relief,  if  he  asserts  that  the   ultimate   cause  of 
action  is  vested  in  him  and  not  in  the  original  plaintiff,  then  his 
interest  is  adverse  to  both  of  the  parties.     The  doctrine  may  be 
expressed    in  the  following  manner:    The  intervenor's  interest 
must  be  such,  that  if  the  original  action  had  never  been  com- 
menced, and  he  had  first  brought  it  as  the  sole  plaintiff,  he  would 
have  been  entitled  to  recover  in  his  own  name  to  the  extent  at 
least  of  a  part  of  the  relief  sought ;  or  if  the  action  had  first  been 
brought  against  him  as  the  defendant,  he  would  have  been  able 
to  defeat  the  recovery  in  part  at  least.     His  interest  may  be 
either  legal  or  equitable.     If  equitable,  it  must  be  of  such  a 
character  as  would  be  the  foundation  for  a  recovery  or  for  a 
defence,  as  the  case  might  be,  in  an  independent  action  in  which 
he  was  an  original  party.     As  the  new  system  permits  legal  and 
equitable  causes  of  action  or  defences  to  be  united  by  those  who 
are  made  the  parties  to  an  ordinary  suit,  for  the  same  reason 
either  or  both  may  be  relied  upon  by  an  intervenor.     In  short, 
the  same  rules  govern  his  rights  which  govern  those  who  origi- 
nally sue  or  defend.     The  proceeding  by  intervention  is  not  an 
anomalous  one,  differing  from  other  judicial  controversies,  after 
it  has  been  once  commenced.     It  is,  in  fact,  the  grafting  of  one 
action  upon  another,  and  the  trying  of  the  combined  issues  at 
one  trial,  and  the  determining  them  by  one  judgment.     In  this 
aspect  of  the  proceeding,  it  is  both  plain  and  reasonable  that  the 
intervenor  should  not  l>e  required  to  apply  for  permission  to  come 
in.     He  brings  himself  into  court,  and  becomes  a  litigant  party 
by  filing  and  serving  his  petition,  which  is  answered  by  the  adver- 
sary   parties  —  plaintiff   or   defendant,    or   both  —  in    the   same 
manner  as  though  it  was  the  pleading  of  a  plaintiff:  the  issues 
are. thus  framed,  —  issues  upon  the  plaintiff's  petition  and  the 
intervenor's  petition,  —  and  the  trial  of  the  whole  is  had  at  one 
hearing.     If  the  intervenor  fails  on  this  trial,  a  judgment  for 
costs  is  of  course  rendered  against  him ;  if  he  succeeds,  a  judg- 


INTERVENTION. 


467 


ment  is  given  in  his  favor  according  to  the  facts  and  circum- 
stances of  the  case.^ 

§  431.  This  is  certainly  a  great  innovation  upon  the  procedure 
which  has  hitherto  prevailed  in  courts  of  law  and  of  equity.  It 
is,  however,  a  method  based  upon  the  ver}^  principles  which  lie 
at  the  foundation  of  the  entire  reformedAmerican  system.  The 
only  possible  objection  is  the  multiplication  of  issues  to  be  decided 
in  the  one  cause,  and  the  confusion  alleged  to  result  therefrom. 
This  objection  is  not  real :  it  is  the  stock  argument  Avhich  was 


1  These  remarks  apply  in  their  full 
extent  only  to  the  Iowa  system,  since  by 
the  last  ix'vision  of  the  California  code  an 
intervenor  must  obtain  leave  of  the  court 
to  file  his  complaint.  Wliere  an  interven- 
tion is  adverse  to  both  plaintiff  and  de- 
fendant, the  issues  raised  by  it  must  be 
tried  and -decided,  whatever  disposition 
may  be  made  of  the  issues  between  tlie 
original  parties.  If  the  plaintiff  is  non- 
suited on  the  trial,  the  intervention  is  not 
thereby  dismissed,  but  its  trial  must  go 
on  until  a  decision  in  it  is  reached. 
Poehlman  v.  Kennedy,  48  Cal.  201.  Tiie 
following  cases  show  the  circumstances 
under  which  the  doctrine  has  been  applied 
by  the  courts  of  California.  A  third  per- 
son, to  whom  the  cause  of  action  has  been 
transferred  pendente  lite,  or  who  is  directly 
Interested  in  the  subject-matter,  may  in- 
tervene before  or  after  the  issue  is  joined. 
Brooks  V.  Hager,  5  Cal.  281,  282.  In  an 
action  to  foreclose  a  mortgage  given  on  a 
homestead,  the  wife  of  the  mortgagor  may 
intervene.  Sargent  v.  Wilson,  5  Cal.  504, 
607  ;  Moss  v.  Warner,  10  Cal.  296,  297. 
"When  the  State  was  the  plaintiff  seeking 
to  recover  moneys  belonging  to  it,  a  third 
person  intervened,  and  set  up  a  claim  to 
the  same  money,  growing  out  of  the 
transaction  which  was  the  foundation  of 
the  suit ;  but  it  was  held  that  the  State 
could  not  be  sued  in  any  form,  although 
it  was  conceded  that  the  intervention 
would  have  been  proper  between  private 
persons.  People  v.  Talmage,  6  Cal.  256, 
258.  An  intervention  is  proper  by  a  per- 
son having  a  claim  or  lien  upon  tlie  fund 
which  is  the  subject  of  the  action.  County 
of  Yuba  V.  Adams  &  Co.,  7  Cal.  35.  In 
an  attachment  suit,  judgment  creditors  of 
the  defendant  may  intervene,  and  object 


to  the  attachment,  and  have  it  set  aside 
if  void  as  against  them.  Davis  v.  P^ppin- 
ger,  18  Cal.  378,  380;  and  see  Dixey  v. 
Pollock,  8  Cal.  570.  And,  in  such  a  suit, 
a  subsequent  attaching  creditor  may  inter- 
vene, and  show  that  the  first  attachment 
was  wrongly  issued,  because  there  was, 
in  fact,  no  debt  due  from  the  defendant 
to  the  plaintiff  therein,  and  may  have  its 
lien  postponed  to  that  of  his  own  attach- 
ment. Speyer  v.  Ihmels,  21  Cal.  280,  287  ; 
Coghill  V.  Marks,  29  Cal.  673.  In  an  ac- 
tion against  a  sheriff  for  wrongfully  seiz- 
ing the  plaintiff's  property  on  execution 
against  another,  the  person  who  indemni- 
fied the  slieriff  may  intervene,  and  make 
himself  a  party  on  the  record,  and  defend 
in  tlie  place  of  the  defendant,  —  the  slieriff. 
Dutil  V.  Pacheco,  21  Cal.  438,  442,  per 
Norton  J.  If  an  action  is  brought  to 
foreclose  a  mortgage  wliich  is  barred  by 
the  statute  of  limitations,  a  subsequent 
purchaser  or  incumbrancer  of  the  land 
may  intervene,  and  set  up  tiie  statute  as  a 
defence.  Coster  v.  Brown,  23  Cal.  142, 143. 
An  action  being  brought  by  the  assignee 
of  a  thing  in  action,  the  assignment  of 
which  was  absolute  on  its  face,  the  as- 
signor intervened,  alleged  that  he  owned 
three-fourths  of  the  debt,  and  prayed 
judgment  in  his  own  favor  for  that 
amount.  The  intervention  was  sustained, 
and  the  intervenor  had  judgment  for 
tliree-fourths,  and  the  plaintiff  for  one- 
fourth.  Gradwohl  ;;.  Harris,  29  Cal.  150, 
154.  When  the  court  below  has  granted 
an  application  to  intervene,  although 
after  tiie  trial  and  decision,  its  act  is  a 
judicial  one,  and  cannot  be  reviewed  by 
mandamus.  People  v.  Sexton,  37  Cal. 
532,  534. 


468  CIVIL    REMEDIES. 

constantly  urged  in  favor  of  retaining  the  common-law  system 
of  special  pleading,  and  was  repudiated  when  the  codes  were 
adopted  by  the  American  States,  and  has  been  at  last  utterly 
repudiated  in  England.  Complicated  issues  of  fact  are  daily 
tried  by  juries,  and  complicated  equities  are  easily  adjusted  by 
courts.  The  description  which  I  have  here  given  of  the  enlarged 
power  of  intervention  admitted  by  the  codes  of  California  and  of 
Iowa,  may,  by  introducing  its  methods  to  the  profession  of  other 
States,  procure  its  general  adoption  wherever  the  new  procedure 
is  established.  Courts  and  legislatures  of  the  several  States  may 
well  borrow  the  improvements  which  have  been  made  in  other 
commonwealths ;  and  thus,  by  a  comparison  of  methods,  the 
common  system  may  become  perfected  and  unified. 


PROVISIONS   IN   RELATION    TO    PLEADING.  469 


CHAPTER   THIRD. 

THE  AFFIRMATIVE  SUBJECT-MATTER  OF  THE  ACTION:  THE 
FORMAL  STATEMENT  OF  THE  CAUSE  OF  ACTION  BY  THE 
PLAINTIFF. 

SECTION    FIRST. 
THE    STATUTORY    PROVISIONS. 

§  432.  I  HERE  collect  all  the  proYisions  of  the  various  codes 
which  relate  in  a  general  manner  to  the  plaintiff's  complaint  or 
petition,  and  which  contain  the  rules  applicable  to  the  theory  of 
pleading  as  a  whole  :  those  which  prescribe  the  mode  of  alleging 
certain  particular  classes  of  facts,  or  regulate  the  joinder  of  causes 
of  action,  or  define  the  nature  and  uses  of  the  reply,  will  be  quoted 
in  subsequent  portions  of  the  chapter,  in  immediate  connection 
with  the  several  subjects  to  which  they  refer.  The  important 
clauses  which  announce  the  fundamental  and  essential  principles 
and  doctrines  of  the  reformed  system  in  regard  to  all  pleadings, 
and  which  determine  the  form  and  substance  of  the  one  by  which 
the  plaintiff  sets  forth  the  grounds  of  his  claim  for  judicial  relief, 
are  nearly  the  same  in  the  different  State  codes.  With  the  few 
variations  in  the  language,  which  will  be  pointed  out,  there  is  no 
substantial  difference  ;  and  the  system  of  pleading,  as  found  in 
the  statute,  is  absolutely  the  same  wherever  the  reform  prevails. 
The  following  are  all  the  provisions  which  it  is  necessary  to  quote 
in  order  to  exhibit  the  simple  and  natural  methods  introduced  by 
the  new  procedure. 

§  433.  "  All  the  forms  [the  rules,  Ohio,  Nebraska,  Kansas]  of 
pleading  heretofore  existing  [in  actions  at  law,  Oregon]  are  abol- 
ished ;  and  hereafter  the  forms  of  pleading  in  civil  actions  in  courts 
of  record,  and  the  rules  by  which  the  sufficiency  of  the  pleadings  is 
to  be  determined,  are  those  prescribed  by  this  act."  ^     "  The  first 

»  New   York,  §   140;  Wisconsin,   ch.  §  116;  California,  §  421;  Florida,  §  91; 

125,   §  1  ;  Ohio,  §   83 ;  Missouri,  art.   5,  Oregon,    §   62 ;    Dacotah,   §    92 ;    North 

§  1 ;  Minnesota,  §  76 ;  Kansas,  §  85 ;  Ne-  Carolina,   §  91  ;   South  Carolina,   §  163. 

braska,  §  90  ;  Indiana,  §  47  ;  Kentucky,  In  Indiana,  the  phrase  "  inconsistent  with 


470 


CIVIL   REMEDIES. 


pleading  on  the  part  of  the  plaintiff  is  the  complaint  [petition]."  ^ 
"  The  onh"  pleadings  allowed  are,  1,  the  petition  [complaint]  by 
the  plaintiff ;  2,  the  answer  or  demurrer  by  the  defendant ;  3,  the 
demurrer  or  reply  by  the  plaintiff;  4,  the  demurrer  to  the  reply 
by  the  defendant."  ^  "  The  complaint  [petition]  shall  contain, 
1,  the  title  of  the  cause  specifying  the  name  of  the  court  in  which 
the  action  is  brought,  the  name  of  the  county  in  which  the  plain- 
tiff desires  the  trial  to  be  had,  and  the  names  of  the  parties  to  the 
action,  —  plaintiff  and  defendant ;  2,  a  plain  and  concise  state- 
ment of  the  facts  constituting  a  cause  of  action  without  unneces- 
sary repetition  ;  3,  a  demand  of  the  relief  to  which  the  plaintiff 
supposes  himself  entitled.  If  a  recovery  of  money  be  demanded, 
the  amount  thereof  shall  be  stated."  ^     "  The  defendant  may  de- 


tlie  provisions  of  this  act  "  is  inserted  be- 
tween "existing"  and  "are  abolished." 
Tlie  corresponding  provision  of  tlie  Iowa 
code  is  more  detailed  :  "  §  2644.  All  tech- 
nical forms  of  action  or  pleading,  all  com- 
mon counts  and  general  issues,  and  all 
fictions,  are  abolished  ;  and  hereafter  the 
forms  of  pleading  in  civil  actions,  and  the 
rules  by  which  their  sufficiency  is  to  be 
determined,  are  those  prescribed  in  this 
code." 

1  New  York,  §  141  ;  AVisconsin,  ch. 
125,  §  2;  Missouri,  art.  5,  §  3  ;  Minnesota, 
§  78  ;  Indiana,  §  49 ;  California,  §  425 ; 
Florida,  §  92;  Oregon,  §  64;  Dacotah, 
§  94  ;  North  Carohna,  §  92  ;  South  Caro- 
lina, §  164. 

-Ohio,  §  84;  Minnesota,  §  77;  Kan- 
sas, §  86  ;  Nebraska,  §  91  ;  Iowa,  §  2645  ; 
Indiana,  §  48 ;  California,  §  422  ;  Oregon, 
§  63;  Dacotah,  §  93;  Kentucky,  §  117. 
In  Ohio,  the  following  is  added  :  "  Cross- 
petition.  Any  defendant  who  is  properly 
made  a  defendant  may  claim  in  his  an- 
swer relief  touching  the  matters  in  ques- 
tion in  the  petition,  against  the  plaintiff 
or  against  other  defendants  in  the  same 
action."  So  in  Kentucky  the  defendant 
may  make  his  answer  a  cross-petition 
against  a  codefendant  or  other  person. 

3  New  York,  §  142  (compl't.);  Wis- 
consin, ch.  125,  §  3  (compl't.)  ;  Ohio, 
§  85  (pet'n.)  ;  Kansas,  §  87  (pet'n.)  ;  Ne- 
braska, §  92  (pet'n.)  ;  Missouri,  art  5,  §  3 
(pet'n.);  Minnesota,  §  79  (compl't.);  In- 
diana, §  49  (compl't.);  California,  §  426 
(compl't.);  Florida,  §  93  (comijl't.)  ;  Ore- 
gon, §  65  (compl't.) ;  Dacotah,  §  95  (com- 


pl't.) ;  Kentucky,  §  118  (pet'n.)  ;  North 
Carolina,  §  93  (compl't.)  ;  South  Carolina, 
§  165  (compl't.).  In  Ohio,  Kansas,  and 
Nebraska,  the  second  subdivision  reads, 
"  A  statement  of  the  facts  constituting, 
&c.,  in  ordinary  and  concise  language  ;  " 
in  Indiana  it  is  the  same,  with  the  follow- 
ing addition,  "  without  repetition  and  in 
such  a  manner  as  to  enable  a  person  of 
common  understanding  to  know  what  is 
intended."  The  corresponding  section  of 
the  Iowa  code  is  special :  "  §  2646.  The 
petition  must  contain,  1,  the  name  of  the 
court  and  county  in  which  the  action  is 
brought ;  2,  the  names  of  the  parties  to 
the  action,  plaintiff  and  defendant,  fol- 
lowed by  the  word  '  petition  '  if  the  pro- 
ceedings are  ordinary,  and  by  the  words 
'  petition  in  equity  '  if  the  proceedings  are 
equitable  ;  3,  a  statement  of  the  facts  con- 
stituting tlie  plaintiff's  cause  of  action; 
4,  a  demand  of  the  relief  to  whicii  the 
plaintiff  considers  himself  entitled,  and, 
if  a  recovery  of  money  be  demanded,  the 
amount  thereof  shall  be  stated  ;  5,  when 
the  petition  contains  more  than  one  cause 
of  action,  eacii  must  be  stateil  wholly  in 
a  division  or  count  by  itself,  and  must  be 
sufficient  in  itself;  but  one  prayer  for  re- 
lief may  include  a  sum  based  on  all  the 
counts  looking  to  a  money  remedy  ;  6,  in 
a  petition  l)y  equitable  proceedings,  each 
division  shall  also  be  separated  into  para- 
graphs, numbered  as  such,  for  convenient 
reference  ;  and  each  paragrajjh  shall  con- 
tain, as  near  as  may  be  convenient,  a 
complete  and  distinct  statement." 


PROVISIONS   IN    RELATION   TO    PLEADING.  471 

mill"  to  the  complaint  [petition]  when  it  shall  appear  on  the  face 
thereof,  either,  1,  that  the  court  has  no  jurisdiction  of  the  person 
of  the  defendant  or  the ,  subject  of  the  action  ;  or,  2,  that  the 
plaintiff  has  not  legal  capacity  to  sue  ;  or,  3,  that  there  is  another 
action  pending  between  the  same  parties  for  the  same  cause  ;  or, 
4,  that  there  is  a  defect  [or  misjoinder,  California]  of  parties 
plaintiff  or  defendant ;  or,  5,  that  several  causes  of  action  have 
been  improperly  united  ;  or,  6,  that  the  complaint  [petition]  does 
not  state  facts  sufficient  to  constitute  a  cause  of  action."  ^  "  When 
any  of  the  matters  enumerated  [in  the  last  section]  do  not  appear 
upon  the  face  of  the  complaint  [petition] ,  the  objection  may  be 
taken  by  answer.  If  no  such  objection  be  taken  either  by  de- 
murrer or  answer,  the  defendant  shall  be  deemed  to  have  waived 
the  same,  excepting  only  the  objection  to  the  jurisdiction  of  the 
court,  and  the  objection  that  the  complaint  [petition]  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action."  ^ 

§  434.  The  foregoing  provisions  describe  the  complaint  or 
petition:  the  following  clauses  —  some  of  which,  however,  are 
not  found  in  all  the  codes —  comprise  the  general  rules  applicable 
to  all  pleadings,  which  regulate  their  form  and  contents,  and  de- 
termine their  sufficiency,  —  the  general  principles,  in  short,  which 
characterize  the  system  of  pleading  provided  for  by  the  reformed 
procedure  :  "  In  the  construction  of  a  pleading  for  the  purpose  of 
determining  its  effect,  its  allegations  shall  be  liberally  construed 

1  New    York,   §    144;   Wisconsin,   ch.  show  it  to  be  in  writing  when  it  should  be 

125,  §  5  ;  Ohio,  §  87  ;  Minnesota,  §  80 ;  so   evidenced  ;  or,   if  founded  on  an  ac- 

Kansas,   §  8'J  ;  Nebraslca,  §  94  ;  Indiana,  count  or  writing  as  evidence  of  indebted- 

§  50;  Missouri,  art.  5,  §  6  (adding,  "  or,  ness,  and  neither  sucli  account  or  writing, 

7,  that  a  party,  plaintiff  or  defendant,  is  or  a  copy  thereof,  is  incorporated  with,  or 

not  a  necessary  party  to  a  complete  deter-  attached  to,  such  pleading,  or  a  sufficient 

mination    of    the    action  "  ) ;    California,  reason  stated  for  not  doing  so." 
§  430  (adding,  "  7,  that  tlie  complaint  is  -  New  York,  §§  147,  148 ;  Wisconsin, 

ambiguous,  unintelligible, or  uncertain  ") ;  ch.   125,   §§  8,9;  Ohio,  §  89;  Missouri, 

Oregon,  §  6(j  (adding,  "  or,  7,  that  the  ac-  art.  5,  §  10;  Minnesota,  §§  77,  78  ;  Kan- 

tion  has  not  been  conmienced  within  the  sas,  §  91 ;  Nebraska,  §  90  ;  Indiana,  §  54; 

time  limited  in  the  code  ")  ;  Kentucky,  California,  §§  433,   434  ;  Florida,  §§  98, 

§    120;   Florida,    §  95;    Dacotah,  §  97;  99;  Oregon,  §§  69,  70;  Dacotah,  §§  100, 

North   Carolina,  §  95 ;    South    Carolina,  101 ;    North  Carolina,  §§  98,   99 ;  South 

§167.     In  Iowa,  tlie  first  four  subdivisions  Carolina,  §§  170,  171.     The   Iowa  code, 

of  §  2648  are  the  same  as  those  given  in  the  §  2650,  after  the  same  provision  as  that  in 

text,  and  the  section  then  proceeds  :  "  or,  the  text,  adds,  "  If  the  facts  stated  by  the 

5,  that  the  facts  stated  in  the  petition  do  petition  do  not  entitle  tlie  plaintiff  to  any 

not  entitle  the  plaintiff  to  the  relief  de-  relief  whatever,  advantage  may  be  taken 

manded  ;  or,  6,  that  the  petition  on  the  of  it  by  motion  in  arrest  of  judgment  be- 

face  thereof  shows  that  the  claim  is  barred  fore  judgment  is  entered." 
by  the  statute  of  limitations  ;  or  fails  to 


472  CIVIL   REMEDIES. 

with  a  view  to  substantial  justice  between  the  parties."^  "If 
irrelevant  or  redundant  matter  be  inserted  in  a  pleading,  it  may 
be  struck  out  on  motion  of  any  person  aggrieved  thereby  ;  and 
when  the  allegations  of  a  pleading  are  so  indefinite  and  uncertain 
that  the  precise  nature  of  the  charge  or  defence  is  not  apparent, 
the  court  may  require  the  pleading  to  be  made  definite  and  cer- 
tain by  amendment."  ^  "  All  fictions  in  pleading  are  abolislied  ;  "  ^ 
"  A  material  allegation  in  a  pleading  is  one  essential  to  the  claim 
or  defence,  which  could  not  be  struck  from  the  pleading  without 
leaving  it  insufficient.  Neither  presumptions  of  law  nor  matters 
of  which  judicial  notice  is  taken  need  be  stated  in  the  pleading."  * 
The  following  special  provision,  Avhich  is  found  only  in  a  portion 
of  the  codes,  and  is  not  impliedly  contained  in  the  general  prin- 
ciples common  to  them  all,  is  quoted  because  of  its  practical  im- 
portance as  a  rule  of  procedure  in  those  States  whose  legislation 
has  adopted  it :  "  If  the  action,  counterclaim,  or  set-off,  be  founded 
on  an  account,  or  on  a  note,  bill,  or  other  written  instrument,  as 
evidence  of  indebtedness,  a  copy  thereof  must  be  attached  to 
and  filed  with  the  pleading.  If  not  so  attached  and  filed,  the 
reason  thereof  must  be  shown  in  the  pleading."  ^ 

§  485.  Ample  provision  is  made  for  the  amendment  of  plead- 
ings, either  at  the  trial  itself,  or  at  any  other  time  in  the 
progress  of  the  cause.  The  following  sections  are  contained  in 
all  the  codes,  with  some  unimportant  verbal  vaiiations  in  a  few 

1  New   York,  §  159  ;    Wisconsin,   ch.  constitute  tlie  cause  of  action  or  defence 

125,  §  '2o;  Ohio,  §  114  ;  Missouri,  art.  5,  shall  be  stated." 

§  37;  Minnesota,   §  93;  Kansas,  §  115;  *  Ohio,    §§    128,    129;    Missouri,    art. 

Nebraska,  §  121;  Indiana,  §  90;  Califor-  5,  §  39  (only    the  last  clause);  Kansas, 

nia,  §  452;  Florida,  §  109  ;  Oregon,  §  83  ;  §§    129,  130;  Nebraska,  §§  135,  13G ;  In- 

Dacotah,  §   112;  North  Carolina,  §    119;  diana,  §  88  (only  the  last  clause);  Cali- 

South  Carolina,  §  182.  fornia,  §  463  (first  clause  only) ;  Oregon, 

-  New    York,  §    160;    Wisconsin,   ch.  §  93  (the  first  clause  only). 
125,  §  24;  Ohio,  §  118;  Missouri,  art.  5,  »  Ohio,    §    117;   Kansas,   §    118;    Ne- 

§  20  ;  Minnesota,  §  94  ;  Kansas,  §    119  ;  braska,  §  124  ;  Missouri,  art.  5,  §  51,  the 

Nebraska,  §   125  ;  Indiana,   §  90 ;  Iowa,  instrument  itself  must  be  filed  with  the 

§§  2719,  2720  (somewhat  altered);  Cali-  pleading;  Indiana,  §  78,  —  whenany  plead- 

fornia,  §  453  (altered  verbally)  ;  Florida,  ing  is  founded  on  a  written  instrument  or 

§   110;  Oregon,   §  84;  Dacotah,  §    113;  account,  the  original,  or  a  copy,  must  be 

North   Carolina,   §  120;  South   Carolina,  filed  with  the  pleading.     In  Iowa,  the  sec- 

§  183.  tion  prescribing  the  grounds  of  demurrer 

^  Ohio,  §115;  Kansas,  §  116  ;  Indiana,  requires  such  a  writing,  or  a  copy  thereof, 

§92;  Missouri,  art. 5,  §  18,  —  "Noallega-  to  be  incorporated  with,  or  attached   to, 

tion  shall  be  made  in  any  pleading  which  the  pleading  ;  §  2648,  subd.  6.     Sees«y<ru, 

the  law  does  not  recjuire  to  be  proved,  and  §  433,  note, 
only   the  substantial  facts   necessary  to 


PROVISIONS    IN    RELATION    TO    PLEADING.  473 

of  them  :  "  No  variance  between  the  allegation  in  a  pleading  and 
the  proof  shall  be  deemed  material,  unless  it  have  actually  misled 
[shall  actually  mislead]  the  adverse  party  to  his  prejudice  in 
maintaining  his  action  or  defence  upon  the  merits.  Whenever  it 
shall  be  alleged  that  a  party  has  been  so  misled,  that  fact  shall  be 
proved  to  the  satisfaction  of  the  court,  and  in  what  respect  he  has 
been  misled  ;  and  thereupon  the  court  may  order  the  pleading 
to  be  amended  upon  such  terms  as  shall  be  just."  ^  "  When  the 
variance  is  not  material,  as  provided  in  the  last  section,  the  court 
may  direct  the  fact  to  be  found  according  to  the  evidence,  or  may 
order  an  immediate  amendment  without  costs."  ^  "  Where,  how- 
ever, the  allegation  of  the  cause  of  action  or  defence  to  which  the 
proof  is  directed  is  unproved,  not  in  some  particular  or  particulars, 
but  in  its  entire  scope  and  meaning,  it  shall  not  be  deemed  a  case 
of  variance  within  the  last  two  sections,  but  a  failure  of  proof."  ^ 
Any  pleading  may  be  amended  once  by  the  party  filing  or  serving 
it,  as  a  matter  of  course,  and  without  costs,  and  without  prejudice 
to  proceedings  already  had  :  such  amendment  must  be  made  with- 
in specified  times,  which  differ  in  the  various  codes  ;  but  will  not 
be  permitted  if  it  appear  to  be  merely  for  purposes  of  dela3^*  In 
addition  to  this  privilege  of  voluntary  amendment  accorded  to  the 
parties,  the  court  itself  may,  on  motion,  amend  a  pleading,  or  per- 
mit it  to  be  amended,  at  any  stage  of  the  cause,  before  and  in 
most  of  the  States,  after  the  judgment,  on  such  terms  as  may  be 
proper.  This  authority  is  conferred  in  very  broad  terms,  with 
the  limitation,  however,  that  the  cause  of  action  or  defence  shall 
not  be  substantially  changed.^     Finally,  all  the  codes  contain  the 

1  New  York,  §  169  ;  Wisconsin,  cli.  Floritla,  §  121 ;  Oregon,  §  96  ;  Dacotaii, 
125,  §85;  Ohio,  §  131;  Missouri,  art.  8,  §  124;  North  Carolina,  §  130;  South 
§   1;  Minnesota,  §   105;  Kansas,  §   loo;     Carolina,  §  194. 

Nebraska,  §  138;  Iowa,  §  2686;  Indiana,  ■*  New   York,  §    172;    Wisconsin,  ch. 

§  94;  California,  §  469;  Florida,  §   119;  125,  §  88;  Ohio,  §134;  Missouri,  art.  8, 

Oregon,    §   94;    Dacotah,   §   122;  North  §   7;  MinneSDta,   §   108;  Kansas,   §  186; 

Carolina,  §  128 ;  South  Carolina,  §  192.  Nebraska,  §  141;    Indiana,   §  97;  Iowa, 

2  New  York,  §  170;  Wisconsin,  ch.  §2647;  CaUfornia,  §472;  Florida,  §  122; 
125,  §36;  Ohio.  §  132;  Missouri,  art.  8,  Oregon,  §  97;  i^acotah,  §  125;  North 
§  2;  Minnesota,  §  106;  Kansas,  §  134;  Ne-  Carolina.  §  131;  South  Carolina,  §  195. 
braska,  §  139 ;  Iowa,  §  2687  ;  Indiana,  These  provisions  are  substantially  the 
§  95;  California,  §  470;  Florida,  §  120;  same,  except  in  respect  to  the  time  within 
Oregon,  §  95  ;  Dacota,-  §  123  ;  North  which  the  amendment  can  be  made  :  they 
Carolina,  §  129;  South  Carolina,  §  193.  all  permit  one  such  amendment  by  the 

3  New  York,  §  171 ;  Wisconsin,  ch.  party  of  his  own  pleading,  as  a  matter  of 
125,  §  37  ;  Minnesota,  §  107  ;  Ohio,  §  183 ,  course. 

Kansas,  §  135 ;  Nebraska,  §    140  ,  lowa^  ^  New    York,  §    173 ;  Wisconsin,   ch. 

§  2688  ;  Indiana,  §  96  ;  California,  §  471 ;     125,  §  41 ;  Ohio,  §  137 ;  Missouri,  art.  8, 


474 


CIVIL   REMEDIES. 


following  most  righteous  provision,  which,  as  appears  by  their  re- 
ported decisions,  is  treated  by  the  courts  of  some  States  as  though 
it  were  a  legislative  command  binding  upon  them  :  "  The  court 
shall,  in  every  stage  of  an  action,  disregard  any  error  or  defect  in 
the  pleadings  or  proceedings  which  shall  not  affect  the  substantial 
rights  of  the  adverse  part}*,  and  no  judgment  shall  be  reversed  or 
affected  b}'  reason  of  such  error  or  defect."  ^ 

§  436.  In  the  important  discussions  based  upon  the  foregoing 
statutory  provisions,  which  will  form  the  substance  of  the  present 
chapter,  the  natural  and  scientific  order  of  treatment  would  un- 
doubtedl}"  lead  me  first  to  develop  the  general  and  essential 
principles  upon  which  the  whole  reformed  theory  of  pleading  is 
based,  and  afterwards  to  apply  these  principles  in  determining 
the  rules  that  regulate  the  matter  and  form  of  the  plaintiff's  com- 
plaint or  petition.  Scientific  method  must,  however,  be  some- 
times abandoned  from  considerations  of  convenience  and  expe- 
diency ;  and  such  a  course  seems  to  be  proper  in  this  instance. 
In  attempting  to  obtain  a  correct  notion  of  the  essential  principles 
and  doctrines  of  the  new  system,  it  will  be  necessary  to  fix  the 


§§  3,  G ;  Minnesota,  §  109 ;  Nebraska, 
§144  ;  Kansas,  §  139  ;  Indiana,  §  99  (with 
verbal  clianges)  ;  Iowa,  §  2689  ;  Califor- 
nia, §  473  ;  Florida,  §  123  ;  Oregon,  §  99  ; 
Dacotali,  §  126;  North  Carolina,  §  132; 
South  Carolina,  §  196.  The  following  is 
the  clause  as  found  in  all  the  codes  sub- 
stantially, and  exactly  in  most  of  them  : 
The  court  may  at  any  time  "  amend  any 
pleading  or  proceeding  by  adding  or  strik- 
ing out  the  name  of  any  party ;  or  by 
correcting  a  mistake  in  the  name  of  any 
part}',  or  a  mistake  in  any  other  respect ; 
or  by  inserting  allegations  material  to  the 
case ;  or,  wiien  the  amendment  does  not 
substantially  change  the  claim  or  defence, 
by  conforming  the  pleading  or  proceeding 
to  the  facts  proved." 

1  New  York,  §  176;  Wisconsin,  ch. 
125,  §  44  ;  Ohio,  §  lo8 ;  Missouri,  art.  8, 
§  5  ;  Minnesota,  §  112  ;  Nebraska,  §  145  ; 
Kansas,  §  140;  Indiana,  §  101;  Iowa, 
§2690;  California,  §475;  Florida,  §  126 ; 
Oregon,  §  104  ;  North  Carolina,  §  135 ; 
South  Carolina,  §  199.  The  foregoing 
are  all  the  general  provisions  relating  to 
the  plaintiff's  pleading,  or  to  the  theory 
of  pleading  as  a  whole:  tliose  relating  to 
the  defendant?  i)leading,  to  the  reply,  and 


to  the  joinder  of  causes  of  action,  are 
given  hereafter.  In  a  few  of  the  codes, 
especially  in  those  of  Iowa,  Indiana,  and 
Missouri,  there  are  certain  special  clauses 
prescribing  what  may  be  proved  under 
the  answer  of  denial,  and  what  must  be 
pleaded  as  new  matter,  or  referring  to 
some  mere  points  of  detail :  as  these 
clauses  are  all  embraced  by  implication 
in  the  more  general  provisions  common 
to  all  the  codes,  and  thus  make  no  change 
in  the  law  of  the  States  where  they  are 
found,  they  are  sury)lusage,  and  I  have 
not  quoted  them.  One  special  provision, 
however,  prescribing  a  form  of  complaint 
or  petition  in  certain  cases,  may  properly 
be  cited  here.  "  In  an  action  or  defence 
founded  upon  an  instrument  for  the  pay- 
ment of  money  only,  it  shall  be  sufficient' 
for  a  party  to  give  a  copy  of  the  instru- 
ment, and  to  state  that  there  is  due  there- 
on to  him  from  the  adverse  party  a  speci- 
fied sum  whicli  he  claims."  New  York, 
§  162;  Ohio,  §  122;  Kansas,  §  123;  "in 
an  action,  counterclaim,  or  set-off",  founded 
on  an  account,  note,  bill  of  e.xchange,  or 
other  instrument,  for  the  unconditional 
payment  of  money  only,  it  shall  be  suffi- 
cient," &c. 


JOINDER   OF   CAUSES    OP   ACTION.  475 

meaning  of  certain  terras  and  phrases  used  in  all  the  codes ;  and 
it  SO  happens,  from  the  course  of  judicial  decisions  involving  the 
question,  that  these  very  terms  and  phrases  can  be  most  advan- 
tageously examined,  and  most  easily  interpreted,  in  connection 
with  the  particular  subject  of  "  The  Joinder  of  Causes  of  Action." 
The  entire  discussion  will,  therefore,  be  rendered  simpler,  and 
useless  repetition  will  be  avoided,  by  adopting  the  arrangement 
thus  suggested.  In  pursuing  this  plan,  the  subject-matter  of  the 
chapter  will  be  separated  into  the  following  general  divisions : 

(1)  The  joinder  of  different  causes  of  action  in  one  proceeding  ; 

(2)  the  essential  principles  which  lie  at  the  foundation  of  the 
reformed  system  of  pleading  ;  (3)  the  general  doctrines  and 
practical  rules  deduced  from  these  principles,  which  determine 
and  regulate  both  the  external  form  and  the  substance  of  the 
plaintiff's  complaint  or  petition. 


SECTION    SECOND. 

JOINDER   OF   CAUSES   OF    ACTION. 

§  437.  The  discussion  of  this  important  subject  will  be  sepa- 
rated into  the  following  subdivisions  :  I.  The  statutory  provisions 
found  in  the  various  State  codes.  II.  The  forms  and  modes  in 
which  a  misjoinder  may  occur,  and  the  manner  in  which  it  must 
be  objected  to  and  corrected.  III.  The  legal  import  of  the  term 
"  cause  of  action,"  and  the  case  discussed  in  which  only  a  single 
cause  of  action  is  stated,  although  several  different  remedies,  or 
kinds  of  relief,  are  demanded.  IV.  The  legal  import  of  the  term 
"  transaction  ;  "  discussion  of  the  case  of  "causes  of  action  arising 
out  of  the  same  transaction,  or  transactions  connected  with  the 
same  subject  of  action."  V.  Instances  in  which  the  proper 
joinder  of  causes  of  action  is  connected  with  the  proper  joinder 
of  defendants  ;  discussion  of  the  provision  that  all  the  causes  of 
action  must  affect  all  of  the  parties.  VI.  Instances  in  which  all 
the  causes  of  action  are  against  the  single  defendant,  or  against 
all  the  defendants  alike ;  and  the  only  question  is,  whether  the 
case  falls  within  any  one  of  the  several  specified  classes,  except 
the  first  which  embraces  those  arising  out  of  the  same  transac- 
tion, &c.  These  subdivisions,  I  think,  entirely  exhaust  the  par- 
ticular subject-matter  to  which  this  section  is  devoted. 


476  CIVIL   REMEDIES. 


I.   The  Statutory  Provisions. 

§  438.  The  provision,  which  is  found  substantially  the  same  — 
with  very  slight  modifications,  if  any  —  in  most  of  the  codes,  is  as 
follows  :  "  The  plaintiff  may  unite  in  the  same  complaint  [or 
petition]  several  causes  of  action,  whether  they  be  such  as  have 
heretofore  been  denominated  legal  or  equitable,  or  both,  when 
they  all  arise  out  of,  1.  The  same  transaction,  or  transactions 
connected  with  the  sanre  subject  of  action  ;  2.  Contract,  express 
or  implied ;  or,  3.  Injuries,  with  or  without  force,  to  person  and 
property,  or  either  ;  or,  4.  Injuries  to  character  ;  or,  5.  Claims  to 
recover  real  property,  with  or  without  damages  for  the  with- 
holding thereof,  and  the  rents  and  profits  of  the  same ;  or,  6. 
Claims  to  recover  personal  property,  with  or  without  damages 
for  the  withholding  thereof ;  or,  7.  Claims  against  a  trustee,  by 
virtue  of  a  contract,  or  by  operation  of  law. 

"  But  the  causes  of  action  so  united  must  all  belong  to  one  of 
these  classes,  and,  except  in  actions  for  the  foreclosure  of  mort- 
gages, must  affect  all  the  parties  to  the  action,  and  not  require 
different  places  of  trial,  and  must  be  separately  stated. 

"  In  actions  to  foreclose  mortgages,  the  court  shall  have  power 
to  adjudge  and  direct  payment  by  the  mortgagor  of  any  residue 
of  the  mortgage  debt  that  may  remain  unsatisfied  after  a  sale  of 
the  mortgaged  premises,  in  cases  in  which  the  mortgagor  shall  be 
personally  liable  for  the  debt  secured  by  such  mortgage ;  and  if 
the  mortgage  debt  be  secured  by  the  covenant,  or  obligation,  of 
any  person  other  than  the  mortgagor,  the  plaintiff  may  make 
such  person  a  party  to  the  action,  and  the  court  may  adjudge 
payment  of  the  residue  of  such  debt  remaining  unsatisfied  after  a 
sale  of  the  mortgaged  premises,  against  such  other  person,  and 
may  enforce  such  judgment  as  in  other  cases."  ^ 

1  New  York,  §  167;  Wisconsin,  ch.  tains  more  than  one  cause  of  action,  each 
125,  §§  31,  32  ;  §  31  is  tlie  same  as  tlie  sliall  be  sepsvrately  stated  ami  num- 
first  paragrapli  of  tlie  text;  §  3"2  is  bered ; "  Jlissouri,  cii.  110,  art.  5,  §  2,  is 
the  same  as  tlie  second,  but  omitting  tlie  the  same  as  the  first  and  second  para- 
words  "except  in  actions  for  the  fore-  graphs  of  the  text,  except  that  class  7  is, 
closure  of  mortgages  ;  "  cli.  145,  §§  11,  "  Claims  by  or  against  a  party  in  some 
12,  are  substantially  tlie  same  as  the  tliird  representative  or  fiduciary  capacity,  by 
paragraph  ;  Ohio,  §§  80,  81,  .ire  same  as  virtue  of  a  contract,  or  by  operation  of 
the  first  and  second  paragraphs  of  the  law  ;  "  Nebraska,  §§  87,  88,  the  same  as 
text,  with  same  omission  as  in  Wis-  §§  31,  32,  of  Wisconsin,  and  §§  847,  849 
consin  ;  §  86,  —  "  When  the  petition  con-  contain  same  provision  as  the  third  para- 


JOINDER   OP   CAUSES    OF    ACTION.  477 

§  439.  The  scheme  contained  in  all  these  codes  is  marked  by 
certain  common  features,  Avhich  should  be  noticed ;  namely,  the 
express  provision  for  the  uniting  of  legal  and  equitable  causes  of 
action,  and  the  exceedingly  general  and  vague  clause  permitting 
the  union  of  causes  of  action  arising  out  of  the  same  transaction, 
or  transactions  connected  with  the  same  subject  of  action.  In 
a  few  States  these  peculiar  features  are  wanting ;  while  the 
other  classes  of  causes  of  action  which  may  be  joined  are  substan- 
tially the  same  as  provided  in  the  arrangement  already  given. 
This  is  the  case  in  Kentucky,^  in  Oregon,^  and  in  California.^  It 
should  be  remembered  that  in  Kentucky  and  in  Oregon  a  slight 
distinction  between  legal  and  equitable  proceedings  is  preserved  ; 
and  this  fact,  doubtless,  accounts  for  the  form  of  the  provision  in 
the  codes  of  those  States.  No  such  distinction  remains  in  Cali- 
fornia, and,  as  has  been  seen  in  a  former  chapter,  legal  and  equitable 
causes  of  action  may  be  united,  according  to  the  established  pro- 
cedure in  that  State,  notwithstanding  the  omission  in  the  clause 
expressly  regulating  such  joinder. 

§  440.  In  other  States,  the  original  type  set  forth  in  the  New- 
York  code  has  been  widely  departed  from.  Thus,  in  Indiana, 
an  attempt  is  made  to  enumerate  and  arrange  the  particular  classes 

graph  of  the  text;  Minnesota,  §  103,  same  same  as  in  New  York,  omitting  class  1st, 
as  §§  31,  32,  of  Wisconsin  ;  Kansas,  §  83,  and  all  reference  to  the  union  of  legal  and 
the  same  as  the  first  and  second  para-  equitable  causes  of  action, 
graphs  of  the  text,  and  §  88  is  the  same  ^  California,  Code  of  Civil  Procedure, 
as  §  86  of  Ohio,  above  quoted  ;  Florida,  1872,  §  427.  "  The  plaintifF  may  unite 
§  117,  same  as  the  text ;  North  Carolina,     several  causes  of  acticm  in  the  same  com- 

§  126  ;  South  Carolina,  §  190.  plaint  when  they  all  arise  out  of,  1.  Con- 

1  Kentucky,  §  111.  "  Several  causes  of  tracts,  express  or  implied;  2.  Claims  to 

action  may  be  united  in  the  same  petition  recover   specific   real   property,   with  or 

when  each  affects  all  the  parties  to  the  without  damages  for  withholding  thereof, 

action,  may  be  brought  in  the  same  county,  or  for  waste  committed  thereon,  and  the 

be  prosecuted  in  the  same  kind  of  pro-  rents  and  profits  of  the  same ;  3.  Claims 

ceedings,  and  all  belong  to  one  of  the  fol-  to  recover  specific  personal  property,  with 

lowing  classes  :  1.  Actions  arising  out  of  or  without  damages  for  withholding  the 

contract,  express  or  implied.    2.  Claims  same;  4.  Claims  against  a  trustee  by  virtue 

for  the  recovery  of  specific  real  property,  of  a  contract,  or  by  operation  of  law  ;  5.  In- 

and  the  rents,  profits,  and  damages  for  juries  to  character  ;  6.  Injuries  to  person  ; 

withholding  the  same.     3.  Claims  for  the  7.  Injuries  to  property.    But  the  causes 

recovery   of  specific   personal  property,  of  action  so  united  shall  belong  to  one 

and  damages  for  withholding  the  same,  only  of  these  classes,  and  shall  affect  all 

4.  Claims  for  the  partition  of  real  or  per-  the  parties  to  the  action,  and  not  require 

sonal  property,  or  both.    5.  Claims  arising  different  places  of  trial,  and  shall  be  sepa- 

from   injuries    to    character.     6.    Claims  rately  stated  ;  but  an  action  for  malicious 

arising  from  injuries  to  person  or  property,  arrest  and  prosecution,  or  either  of  thera, 

7.  Claims  against  a  trustee  by  virtue  of  a  may  be  united  with  an  action  for  either 

contract,  or  by  operation  of  law."  an  injury  to  character  or  to  the  person." 
2  Oregon,   §   91,   is  substantially   the 


478 


CIVIL    REMEDIES. 


of  equitable  as  well  as  legal  causes  of  action  which  may  he  joined.^ 
In  Iowa  the  departure  from  the  common  type  and  the  changes  of 
the  common  law  are  much  wider,  and  more  radical.  The  code  of 
that  State,  as  those  of  Kentucky  and  of  Oregon,  retains  some  slight 
separation  between  legal  and  equitable  actions,  but  permits  all 
possible  actions  that  are  legal,  or  all  that  are  equitable,  to  be 
united  in  one  petition.  The  only  requirement  in  reference  to 
their  nature  is,  that  all  causes  of  action  so  united  must  be 
in  the  same  kind  of  proceedings  ;  that  is,  all  legal,  or  all  equi- 
table.2 

§  441.  These  various  statutory  provisions  will  be  examined, 
and  the  judicial  interpretation  put  upon  them  will  be  ascertained, 
in  a  subsequent  portion  of  the  present  section.  Their  general 
scope  and  meaning,  however,  are  very  plain.  Excepting  in  Iowa, 
a  plaintiff  may  unite  different  causes  of  action  in  the  one  complaint 
or  petition,  under  the  following  restrictions:  They  must  affect  all 
the  parties  ;  they  must  all  be  triable  in  the  same  county ;  and 
they  must  all  belong  to  one  of  the  various  specified  classes.     The 


1  Indiana,  §  70.  "  Tlie  plaintiff  may 
unite  several  causes  of  action  in  the  same 
complaint  when  they  are  included  in 
either  one  of  the  following  classes : 
1.  Money  demands  on  contract.  2.  In- 
juries to  property.  3.  Injuries  to  person 
or  character.  4.  Claims  to  recover  pos- 
session of  personal  property,  with  or  with- 
out damages  for  withholding  thereof,  and 
for  injuries  to  the  property  withheld. 
5.  Claims  to  recover  possession  of  real 
property,  with  or  without  damages  for 
the  withliolding  thereof,  and  rents  and 
profits  of  the  same  ;  to  make  partition 
thereof,  and  to  determine  and  quiet  the 
title  to  real  property.  6.  Claims  to  en- 
force the  specific  performance  of  contracts, 
and  to  avoid  contracts  for  fraud  or  mistake. 
7.  Claims  to  foreclose  mortgages ;  to  en- 
force or  discharge  specific  liens  ;  to  sub- 
ject to  sale  real  property-upon  demands 
against  decedents'  estates,  wlien  such 
property  has  passed  to  heirs,  devisees,  or 
their  assigns ;  to  marshal  assets,  and  to 
substitute  one  person  to  the  riglit  of  an- 
other ;  and  all  other  causes  of  action 
•  arising  out  of  a  contract  or  a  duty,  and 
not  failing  within  eitiier  of  the  foregoing 
classes.  But  causes  of  action  so  joined 
must  affect  all  tiie  parties  to  the  action, 
and  not  require  different  places  of  trial. 


"  §  71.  When  the  plaintiff  desires  to  re- 
cover possession  of  title-papers  or  other 
instruments  in  writing,  or  to  correct  any 
mistakes  therein,  a  separate  action  may 
be  brought  therefor,  or  the  possession  of 
such  title-papers  or  other  instruments  in 
writing  may  be  recovered,  or  mistakes 
corrected  in  any  otlier  action,  wlien  such 
recovery  or  correction  would  be  essential 
to  a  complete  remedy.  §  72.  When  the^ 
action  arises  out  of  contract,  the  plaintiff 
may  join  such  other  matters  in  his  com- 
plaint as  may  be  necessary  for  a  complete 
remedy  and  a  speedy  satisfaction  of  his 
judgment,  altliougli  such  other  matters 
fall  witliin  some  otlier  one  or  more  of  tiie 
foregoing  classes." 

-  Iowa,  code  of  1873,  §  2630.  Prior 
code,  §  284-1.  "  Causes  of  action  of  what- 
ever kind,  wiiere  each  may  be  prosecuted 
by  the  same  kind  of  proceedings,  provided 
that  they  be  by  the  same  parties  and 
against  the  same  party  in  the  same  right, 
and  if  suit  on  all  as  to  venue  may  be 
brought  in  tlie  same  county,  may  be  joined 
in  the  same  petition.  But  the  court,  to 
prevent  confusion  therein,  may  direct  all 
or  any  portion  of  tiie  issues  so  joined 
therein  to  be  tried  separately,  and  may 
determine  the  order  thereof" 


JOINDER   OF   CAUSES   OF   ACTION.  479 

result  is,  that  all  the  causes  of  action  so  united  must  be  either 
upon  contract,  or  for  injuries  to  person  or  property,  and  the  like, 
unless  they  all  arise  out  of  the  same  transaction,  or  transactions 
connected  with  the  same  subject  of  action.  This  latter  exception 
does  not,  as  has  been  seen,  prevail  in  a  few  of  the  States  ;  but, 
where  it  does  prevail,  the  most  incongruous  and  dissimilar  causes 
of  action  may  be  joined,  if  they  arise  out  of  the  same  transaction, 
or  transactions  connected  with  the  same  subject  of  the  action, 
within  the  meaning  of  that  phrase.  It  is  evident  that  very  little 
difficulty  can  arise  in  interpreting  and  aj)plying  most  of  the 
classes.  The  real  doubts  and  uncertainties  grow  out  of  (1)  the 
confounding  the  reliefs  demanded  by  the  plaintiff  with  the  cause 
of  action  upon  which  such  demand  is  based  ;  and  this  confusion 
is  more  apt  to  exist  in  equity  causes,  and  especially  in  those  where 
legal  relief  is  prayed  for  as  well  as  equitable  ;  (2)  the  clause  per- 
mitting the  joinder  of  causes  of  action  arising  out  of  the  same 
transaction,  &c.  "  Transaction  "  has  had  no  technical  legal 
meaning,  and  is  a  word  of  very  vague  import  at  J^est ;  but  this 
vagueness  is  largel}^  increased  by  the  additional  clause  which  per- 
mits causes  of  action  arising  out  of  transactions  connected  with 
the  same  subject  of  action  to  be  united.  These  are  the  two 
chief,  and  almost  only,  sources  of  doubt  in  the  practical  construc- 
tion of  the  passage  in  question.  The  first  one  —  the  liability  of 
confounding  the  reliefs  demanded  with  the  causes  of  action  — 
may,  of  course,  be  avoided  by  the  exercise  of  care  and  discrimi- 
nation :  the  second  is  much  more  embarrassing,  and  it  is  hardly 
possible  that  all  doubt  should  ever  be  removed  from  the  legal 
meaninfj  of  the  lano'uao'e. 


II.   Tlie  Forms  and  Modes  in  which  a  Misjoinder  may  occur,  and 
the  Manner  in  tvhich  it  must  be  objected  to  and  corrected. 

§  442.  All  of  the  codes  require  that  the  different  causes  of 
action  should  be  separately  stated.  In  other  words,  each  must 
be  set  forth  in  a  separate  and  distinct  division  of  the  complaint 
or  petition,  in  such  a  manner  that  each  of  these  divi-sions  might, 
if  taken  alone,  be  the  substance  of  an  independent  action.  In 
fact,  the  whole  proceeding  is  the  combining  of  several  actions 
into  one.  At  the  common  law,  these  separate  divisions  of  the 
declaration  were  termed  "  counts :  "  and  that  word  is  still  used 


480  CIVIL   REMEDIES. 

by  text-writers  and  judges,  althongli,  with  one  or  two  exceptions, 
it  is  not  authorized  by  the  codes ;  and  it  tends  to  produce  con- 
fusion and  misapprehension,  since  the  common-Law  "  count "  was 
substantially  a  very  different  thing  from  the  "  cause  of  action  "  of 
the  new  procedure.  In  one  or  two  States,  the  term  "  paragraph  " 
is  used  to  designate  these  primary  divisions.  The  difficulty  in 
the  use  of  this  term  is,  that  it  is  now  very  generally  used  in  Eng- 
land, and  in  most  of  the  States  where  the  reformed  system  pre- 
vails, to  designate  the  short  subdivisions,  or  allegations,  of  facts 
into  which  each  cause  of  action  is  separated,  according  to  a  mode 
of  pleading  which  has  become  very  common.  The  term  "  cause 
of  action  "  is  perhaps  as  proper  as  any  which  can  be  used  for  the 
purpose.  That  such  a  separation  should  be  made,  and  that  each 
distinct  cause  of  action  should  be  stated  in  a  single  and  independ- 
ent division,  so  that  the  defendant  may  answer  or  demur  to  it 
without  any  confusion  with  others,  is  plainly  indispensable  to  an 
orderly  sj^stem  of  pleading,  and  is  expressly  required  by  all  the 
codes ;  and  in  some  of  the  States  the  courts  have  strictly  enforced 
the  requirement,  and  have  thereby  done  much  to  prevent  the 
formal  presentations  of  the  issues  to  be  tried  from  falling  into 
that  confused  and  bungling  condition  which  exists  to  so  great  an 
extent  in  certain  of  the  States. 

§  443.  The  special  provisions  respecting  the  manner  of  raising 
an  objection  to  a.  misjoinder  of  causes  of  action,  and  the  effect 
thereof,  are  as  follows  :  In  all  the  codes  but  two,  it  is  prescribed 
that  the  defendant  may  demur  to  the  complaint,  or  petition,  if  it 
shall  appear  on  the  face  thereof  that  several  causes  of  action  have 
been  improperly  united  ;  that,  if  the  error  does  not  so  appear,  the 
objection  may  be  taken  by  the  answer  ;  and  that,  if  not  taken 
in  either  of  these  modes,  it  is  waived. ^  The  sustaining  of  a  de- 
murrer upon  this  ground  is  not  fatal  to  the  action  in  all  the 
States.  Several  codes  contain  the  very  just  provision,  that,  when 
such  a  demurrer  is  sustained,  the  court  may  simply  order  the 
action  to  be  divided  into  as  many  as  may  be  necessary  for  the 

1  See  these  provisions,  collected  in  the  appears   on  the  face  of  the  pleading,  it 

text  or  notes,  supra,  §  433.     Tliese  rules  must  be  raised  by  denim-rer,  and  not  by 

are  identical  with  those  which  regulate  answer ;  and  this  is  substantially  tlie  same 

the  method  of  objecting  to  a  defect  of  as  saying  that  it  must  always  be  raised 

parties ;  and   the   decisions  already  cited  by  demurrer,  because  the  misjoinder  will 

(;;'§  206,  207,  287),  of  course,  apply  to  the  alcai/s  appear  on  the  face  of  the  plead- 

present  subject-matter.     If  the  objection  ing. 


JOINDER    OF    CAUSES    OF    ACTION. 


481 


proper  hearing  and  determination  of  the  causes  of  action  set 
forth  in  the  original  pleading, ^  The  plaintiff  is  thus  not  thrown 
out  of  court  in  respect  of  any  of  the  causes  of  action  alleged  by 
him  ;  he  is  merely  required  to  separate  the  single  cause  into  the 
number  of  independent  suits  which  he  should  have  originally 
brought. 

§  444.  In  one  or  two  States  a  misjoinder  is  attended  with  even 
less  serious  consequences  than  this,  the  sole  object  of  the  statu- 
tory provision  on  the  subject  being  to  secure  a  trial  of  each  cause 
of  action  before  the  proper  tribunal.  In  Iowa  there  can  be  no 
misjoinder,  properly  so  called,  except  by  uniting  a  legal  and  an 
equitable  cause  of  action.  Still,  if  two  legal  causes  are  so  utterly 
incongruous  as  to  prevent  a  trial  of  them  together,  the  court  may 
order  them  to  be  tried  separately.  The  clauses  of  the  Iowa  code 
fire  found  in  the  foot-note.^  The  provisions  of  the  Kentucky 
code,  in  reference  to  the  remedy  for  a  misjoinder,  are  similar  to 
those  of  lowa.^  The  practice  in  Indiana  differs  from  that  which 
prevails  in  the  States  generally,  and  also  from  that  established  in 
Iowa.     A  demurrer  for  misjoinder   is  permitted  ;  but  its  effect 


1  New  York,  §  172  ;  Ohio,  §  90  ;  Wis- 
consin, ch.  125,  §  38  (last  clause)  ;  Ne- 
braska, §  97  ;  Kansas,  §  92 ;  Florida, 
§  122  (last  clause)  ;  North  Carolina,  §  131 ; 
South  Carolina,  §  195. 

-  Iowa,  code  of  1873,  §  2631.  "  The 
plaintiff  may  strike  from  his  petition  any 
cause  of  action,  or  any  part  thereof,  at 
any  time  before  the  final  submission  of 
the  case  to  the  jury,  or  to  the  court  when 
the  trial  is  by  the  court.  "  §  2632.  The 
court,  at  any  time  before  the  defence, 
shall,  on  motion  of  the  defendant,  strike 
out  of  the  petiti(jn  any  cause  of  action  or 
causes  of  action  improperly  joined  with 
others  "  The  "  defence  "  here  spoken  of 
is  undoubtedly  tiie  entering  upon  his  de- 
fence at  the  trial  by  tiie  defendant,  and 
not  the  putting  in  his  answer.  The  lan- 
guage of  the  preceding  section  plainly 
points  to  this  construction.  "  §  2633. 
All  objections  to  tlie  misjoinder  of  causes 
of  action  shall  be  deemed  to  be  waived, 
unless  made  as  provided  for  in  the  last 
section,"  —  that  is,  by  motion;  a  mis- 
joinder is  not  a  ground  of  demurrer. 
"  §  2634.  When  a  motion  is  sustaineil  on 
the  ground  of  misjoinder  of  causes  of  ac- 
tion, the  court,  on  motion  of  the  plaintiff, 


shall  allow  him,  with  or  without  costs,  in 
its  discretion,  to  file  several  petitions, 
each  including  such  of  said  causes  of  ac- 
tion as  might  have  been  joined;  and  an 
action  shall  be  docketed  for  each  of  said 
petitions  ;  and  the  same  shall  be  pro- 
ceeded with  without  further  service ; 
and  tite  court  shall  determine,  by  order, 
the  time  of  pleading  therein."  This  mode 
of  procedure  is  simple,  and  eminently 
just,  and  sweeps  away  a  mass  of  technical 
defences  which  still  disfigure  the  pure 
ideal  of  the  American  system  in  many 
States  P'or  a  construction  of  these  pro- 
visions, see  Hinkle  v.  Davenport,  38  Iowa, 
355,  358 ;  Cobb  v.  111.  Cent.  R.  K.,  38  Iowa, 
601,  616  ;  Grant  v.  McCarty,  38  Iowa,  4G8. 
^  Kentucky  code,  §§  113,  114;  Sale  v. 
Critchfield,  8  Bush,  636,  646.  The  de- 
fendant must  move  before  answer  that 
j)laintiff  elect  between  the  causes  of  ac- 
tion, and  strike  out  the  others;  if  no  such 
motion  is  made,  the  objection  is  waived. 
The  same  rule  prevails  as  to  the  mis- 
joinder of  parties,  which  is  never  ground 
of  demurrer;  defendant  must  move  to 
strike  out  the  improper  parties,  or  else 
waive  all  objection.  Dean  v.  English,  18 
B.  Mon.  132 ;  Yeates  v.  AValker,  1  Duv.  84. 


31 


482  CIVIL   REMEDIES. 

can  never  be  fatal  to  the  action.  In  fact,  the  matter  seems  to  be 
practically  left  in  the  discretion  of  tlie  lower  or  trial  court,  and 
any  disposition  of  the  objection  to  a  misjoinder  made  by  it  can- 
not be  assigned  as  error  so  as  to  reverse  a  judgment  on  review. 
The  sections  of  the  Indiana  code  are  quoted  in  the  note.^ 

§  445.  There  is  another  section  found  in  all  the  codes,  which 
has  an  important  bearing  upon  the  subject  under  consideration  in 
some  of  its  aspects,  —  that  which  permits  the  correction  of  plead- 
ings at  the  instance  of  the  adverse  party  on  his  motion  by  strik- 
ing out  irrelevant  and  redundant  matter,  and  by  requiring  the 
pleading  to  be  made  more  definite  and  certain  by  amendment 
where  its  allegations  are  so  indefinite  and  uncertain  that  the  pre- 
cise nature  of  the  charge  or  defence  is  not  apparent.^ 

§  446.  Three  forms  or  modes  of  alleged  misjoinder  are  possi- 
ble, and  they  must  be  examined  separately  in  respect  to  the 
manner  in  which  the  objection  thereto  should  be  taken.  Thej'' 
are,  (1)  When  different  causes  of  action  which  may  properly  be 
united  are  alleged  in  the  one  complaint  or  petition  not  distinctly 
and  separately  as  required  by  the  statute,  but  combined  and  min- 
gled together  in  a  single  statement.  (2.)  When  different  causes 
of  action  Avhich  cannot  properly  be  united  are  alleged  in  the  one 
complaint  or  petition,  and  are  separately  and  distinctly  stated. 
(3)  When  different  causes  of  action  which  cannot  properly  be 
united  are  alleged  in  the  one  complaint  or  petition  not  distinctly 
and  separately,  but  combined  and  mingled  together  in  a  single 
statement.     These  three  cases  will  be  examined  in  order. 

1  Indiana  code,  §  50.  "  The  defendant  ment  sliall  ever  be  reversed  for  any  error 
may  demur  to  the  complaint  wiien  it  ap-  committed  in  sustaining  or  overruling  a 
pears  upon  the  face  thereof,  .  .  .  6th,  that  demurrer  for  misjoinder  of  causes  of  ac- 
several  causes  of  action  have  been  im-  tion."  "  §  54.  When  any  of  the  matters 
properly  joined.  §  51.  When  a  demur-  mentioned  in  §  50  do  not  appear  on  the 
rer  is  sustained  on  the  ground  of  several  face  of  the  complaint,  the  objection  (ex- 
causes  of  action  being  improperly  united  cept  for  misjoinder  of  causes  of  action) 
in  the  same  complaint,  the  court  shall  may  be  taken  by  answer."  It  is  plain 
order  the  misjoinder  to  be  noted  on  the  from  the  foregoing  that  the  practical  effect 
order-book,  and  cause  as  many  separate  of  a  successful  demurrer  is  trivial.  It 
actions  to  be  docketed  between  the  par-  compels  the  separation  of  tlie  action,  and 
ties  as  there  are  causes  of  action  decided  the  trial  of  two  or  more  suits  instead  of 
by  the  court  to  be  improperly  joined;  one.  No  discretion  is  left  to  the  court,  as 
and  each  shall  stand  as  a  separate  action  ;  in  New  York,  Iowa,  and  other  Slates  ;  the 
and  the  plaintiff  shall  thereupon  file  a  court  s/«/// cause  tlie  separate  actions  to  be 
separate  complaint  in  each  of  the  above  docketed.  See  Clark  v.  I.ineberger,  44 
cases,  to  which  the  defendant  shall  enter  Ind.  223,  227,  that  no  objection  can  be 
his  appearance,  and  plead  and  go  to  trial,  raised  on  appeal, 
or  sutler  a  default,  in  the  same  manner  as  -  See  supra,  §  434. 
in  the  original  action.      §  52.  No  judg- 


JOINDER    OF    CAUSES    OF    ACTION.  483 

§  447.  (1.)  Although  the  sections  of  the  codes,  defining  Avhat 
causes  of  action  may  be  united,  all  require  in  positive  terms  that 
when  so  joined  each  must  be  separately  stated,  it  is  settled  by  the 
weight  of  authority,  and  seems  to  be  the  general  rule,  that  a 
violation  of  this  particular  requirement  is  not  a  ground  of  de- 
murrer.    This  conclusion  is  based  upon  the   language   of    the 
codes  authorizing  a  demurrer  for  the  reason  that  causes  of  action 
"  are  improperly  united  in  the  complaint  or  petition."     It  is  said 
that  this  expression  only  points  to  the  case  in  which  causes  of 
action  have  been  embraced  in  one  pleading  which  could  not  prop- 
erly be  joined ;  while  in  the  special  case  under  consideration  it  is 
assumed  that  all  the   causes  of  action  may  be  united,  and  the 
only  error  consists  in  the  external  form  or  manner  of  their  joinder. 
The  remedy  is,  therefore,  not  by  a  demurrer,  but  by  a  motion  to 
make  the  pleading  more  definite  and  certain  by  separating  and 
distinctly  stating  the  different  causes  of  action.^     The  plaintiff 
can  thus  be  compelled  to  amend  his  complaint  or  petition,  and  to 
state  each  cause  of  action  by  itself,  so  that  the  defendant  may 
deal  with  it  by  answer  or  demurrer  as  the  nature  of  the  case 
demands.     It  seems  to  be  the  settled  rule  in  California,  however, 
that  the  defect  may   properly  be  taken   advantage  of  by  de- 
murrer.2 

§  448.  (2.)  When  causes  of  action  separately  stated  are  im- 
properly united  in  the  same  complaint  or  petition,  the  rule  which 
prevails  in  all  the  States,  except  in  the  few  whose  special  legis- 
lation has  already  been  described,  is  the   same  as   that  which 

1  Bass  V.  Comstock,  38  N.  Y.  21;  36  by  the  more  recent  decisions  of  tlie  same 

How.  Pr.  382,  and   cases  cited  ;  Wood  v.  court  cited  above. 

Antliony,  9  How.  Pr.  78;  Hendry  v.  2  Nevada,  &c.  Canal  Co.  v.  Kidd,  43 
Hendry,  32  Ind.  349 ;  Mulholland  1-.  Rapp,  Cal.  180,  37  Cal.  282;  Watson  tJ.  San 
50  Mo.  42;  Pickering  v.  Miss.  Valley  Francisco,  &c.  R.  R.,  41  Cal.  17,  19; 
Nat.  Tel.  Co.,  47  Mo.  457,  460 ;  House  v.  Buckingham  v.  Waters,  14  Cal.  146 ; 
Lowell,  45  Mo.  381.  See  Wiles  v.  Suy-  White  v.  Cox,  46  Cal.  169.  In  Wright  v. 
dam,  6  X.  Y.  Sup.  Ct.  292.  A  different  Conner,  34  Iowa,  240,  242,  it  was  said  : 
rule  formerly  prevailed  in  Missouri,  and  "  If  through  bad  pleading  two  or  more 
it  was  held  that  the  error  was  not  only  distinct  causes  of  action  or  defences  are 
ground  for  a  demurrer,  but  even  for  a  contained  in  one  division  of  a  petition  or 
motion  in  arrest  of  judgmenl  after  verdict!  answer,  which  is  called  a  count,  a  demur- 
McCoy  t'.  Yager,  34  Mo.  134  ;  Clark's  rer  may  be  directed  at  one  of  tlieni  if 
Administrator  v.  Han.  &  St.  Jo.  R.  R.,  36  insufficient  at  law."  In  strictness,  the 
Mo.  202  ;  Hoagland  v.  Han.  &  St.  Jo.  R.  R.,  objecting  party  ought  first  to  require,  by 
39  Mo.  451  ;  Farmers'  Bank  v.  Bayliss,  41  motion,  that  the  petition  or  answer  be 
Mo.  274,  284,  per  Holmes  J.  These  prior  properly  divided,  or  an  election  made  be- 
cases,  liowever,  are  expressly  overruled  tween  the  causes  of  action  or  the  defences  ; 

but,  omitting  this,  he  may  demur. 


484  CIVIL    REMEDIES. 

applies  to  the  case  of  a  defect  of  parties.  If  the  error  appears 
on  the  face  of  the  pleading,  the  defendant  must  demur,  and  can- 
not raise  the  objection  by  answer.  The  statute  adds,  that,  if  the 
error  do  not  thus  appear  on  the  face  of  the  pleading,  the- defence 
may  be  ^n'csented  by  the  answer.  If  the  defendant  omits  to  use 
either  of  these  methods  properly,  he  is  deemed  to  have  waived 
the  objection.  The  practical  result  is,  that  a  demurrer  must 
always  be  resorted  to,  or  all  objection  to  such  misjoinder  will 
be  waived.^  The  demurrer  may  be  by  any  of  the  defendants  ;^ 
and  it  must  be  to  the  entire  com^ilaint  or  petition,  and  not  to  any 
cause  or  causes  of  action  supposed  to  have  been  improperly 
joined.^  To  sustain  a  demurrer  for  this  reason,  however,  the 
complaint  must  contain  two  or  more  good  grounds  of  suit  which 
cannot  properly  be  joined  in  the  same  action.  When  a  complaint, 
therefore,  consists  of  two  or  m.ore  counts,  and  one  sets  forth  a 
good  cause  of  action,  and  another  does  not  although  it  attempts 
to  do  so,  the  )>leading  is  not  demurrable  on  the  ground  of  a  mis- 
joinder, even  though  the  causes  of  action  could  not  have  been 
united  had  the}'  been  sufficiently  and  properly  alleged.-^ 

§  449.  In  a  very  few  States,  however,  the  practice  is  different, 
and  a  demurrer  is  not  permitted  as  the  remedy  for  a  misjoinder. 
It  is  so  in  Kentucky.  The  defendant  must  move  to  strike  out,  or 
to  compel  the  plaintiff  to  elect  which  cause  of  action  he  will 
proceed  upon,  and  to  dismiss  the  others;  and.  a  failure  to  make 
such  motion  is  a  complete  waiver  of  the  objection.  Tlie  plaintiff 
may  also  at  any  time  before  trial  withdraw  any  cause  of  action." 
The  sections  of  the  Iowa  code  quoted  in  §  444  show  that  a  simi- 
lar practice  exists  in  that  State. 

»  Blossom   V.   Barrett,  87    N.  Y.  434,  690;  Willard  v.  Beas,  26  Wise.  540,  544  ; 

436;  Smith   v.  Orser,  43  Barb.  187,  193;  Lee  v.   Simpson,  29  Wise.   333;  Cox  v. 

Mead  v.  Bagnall,  15  Wise.  156 ;  Jamison  West.  Pac.  B.  B.,  47  Cai.  87,  89,  90. 
?>.   Gopher,   35   Mo.   483,   487  ;  Ashhy  v.  °  Forkner  v.   Hart,  Stanton's  code,  p. 

Winston,  26  Mo.  210;  Ilihernia  Savings  60;  Wilson  y.  Tliompson,  ib.  p.  60 ;  Hart 

Soe.  I'.  Ordway,  38  Cal.  679;  Lawrenee  r.  u.  Cundiff,  ib.  p.  61;  Hord  r.   Chandler, 

Montgomery,  37  Cal.  183.  13  B.  Mon.  403;  McKee  r.  Pope,  18  B. 

^  Asliby  y.  Win.st()n,  26  Mo.  210.  Mon.   548,   555;    Bonney    v.    Beardin,  6 

3  Bougiier  I.  Seobey,  16  Ind.  151,  154  ;  Bush,  34;  Dragoo  v.  Levi,  2  Duv.  520; 

and  must  Le  on  tlie  sjjceifie  ground  of  the  Chiles    v.   Drake,    2    Mete.    (Ky.)    146; 

misjoinder  :  a  demuiier  lor  want  of  suffi-  Haneoik  v.  Johnson,  1  Mete.  242;   Sale  v. 

cient  faets  does  not  raise  the  objection.  Crutehfield,  8  Bush,  636,  646  ;  Hinkle  v. 

Cox  i>.  West.  Pae.  B.  B.,  47    Cal.  87,  89,  Davenport,    38    Iowa,    355,   358;    Cobb 

90.  V.  m.   Cent.    B.   B.,  38  Iowa,   601,  616; 

*  Truesdell   v.  Bhodes,  26  Wise.  215,  Grant  v.  McCarty,  38  Iowa,  468. 
219  ;  Bassett  v.  Warner,  23  \»  ise  U73, 689, 


JOINDER    OP    CAUSES    OF    ACTION.  485 

§  450.  (3.)  The  third  case  presents  some  difficulties.  When 
the  complaint  or  petition  contains  causes  of  action  which  cannot 
properly  be/  united,  and  they  are  mingled  and  combined  in  the 
same  allegations,  — in  other  words,  the  pleading  inform  sets  forth 
but  one  cause  of  action,  while  in  reality  it  embraces  two  or  more 
which  cannot  be  joined  in  any  form,  —  is  the  defendant's  remedy 
by  demurrer,  or  by  motion  in  the  first  instance  that  the  pleading 
be  made  more  definite  and  certain  by  separating  the  causes  of 
action,  and  by  demurrer  when  such  separation  has  been  accom- 
plished? In  Missouri  it  is  definitely  settled  that  the  remedy  is 
by  demurrer. 1  That  this  is  the  proper  practice  is  implied  with 
more  or  less  distinctness  by  decisions  in  several  other  States.^ 

§  451.  There  are  grave  difficulties  attendant  upon  the  adoption 
of  such  a  rule,  although  it  seems  to  be  generally  supported  by 
the  decided  cases.  When  upon  sustaining  a  demurrer  inter^DOsed 
upon  the  ground  of  a  misjoinder  of  causes  of  action,  the  action 
itself  is  not  defeated,  but  the  causes  of  action  improperly  united 
are  merely  separated,  and  new  actions  corresponding  with  such 
division  are  proceeded  with,  it  would  seem  to  be  a  necessary 
prerequisite  that  the  causes  of  action  should  have  been  separately 
and  distinctly  stated  in  the  original  pleading.  To  allow  the 
demurrer  to  a  complaint  or  petition  in  which  several  causes  of 
action  are  mingled  up,  and  to  divide  this  mass  of  confused  alle- 
gations into  as  many  complaints  as  there  are  causes  of  action, 
would  seem  to  be  a  work  of  great  difficulty,  if  not  of  absolute 
impossibility.  Again :  it  is  always  difficult  if  not  impossible  to 
determine  with  exactness  whether  a  complaint  or  petition  does 
contain  two  or  more  different  causes  of  action  when  the  allega- 
tions are  thus  combined  into  one  statement.  If  the  averments 
are  found  sufficient  to  express  one  cause  of  action,  it  may  gener- 
ally be  said  that  the  other  averments  are  mere  surplusage,  which 
should  be  rejected  on  a  motion  made  for  that  purpose,  and  not 
the  material  allegations  which  set  forth  a  second  cause  of  action. 

1  Mulholl.and    v.    Rapp,    50    Mo.    42;  v.  State,  27  Ind.  108,  112;  Fritz  i'.  Fritz, 

Ederlin  v.  Judge,  36  Mo.  350  ;  Young  v.  23  Ind.  388,  390 ;  Hibernia  Savings  Soo. 

Coleman,  43  Mo.  179,  184;  Clieely's  Ad-  v.  Ordway,  38  Cal.  679;  Anderson  y.  Hill, 

ministrator  v.    Wells,    33    Mo.    106,  109.  53  Barb.  2-38.     See,  however,  Rogers  v. 

And  see  Pickering  v.  Miss.  Valley  Co.,  47  Smith,  17  Ind.  323,  per  Perkins  J.,  which 

Mo.  457  ;  House  v.  Lowell,  45  Mo.  381.  seems  to  hold  that  the  remedy  should  be 

^  Cary    v.    Wheeler,    14    Wise.    281 ;  by  motion. 
Burrows  v.  Holderman,  31  Ind.  412;  Lane 


486  CIVIL   REMEDIES. 

For  these  reasons,  which  are  based  chiefly  upon  notions  of  con- 
venience, a  demurrer  does  not  seem  to  be  an  appropriate  remedy 
until  the  causes  of  action  have  been  separated,  and  it  is  known 
with  certainty  what  and  how  many  they  are.  In  this  case,  there- 
fore, the  more  convenient  practice  would  seem  to  be  a  motion  in 
the  first  instance  to  make  the  pleading  more  certain  and  definite  by 
arranging  it  into  distinct  causes  of  action,  or  a  motion  to  strike 
out  the  redundant  matter  and  surplusage  and  thus  reduce  it  to 
a  single  definite  cause  of  action.  The  latter  order  would  take 
the  place  of  a  demurrer;  the  former  would  be  followed  by  a 
demurrer  after  the  causes  of  action  had  been  separated. 


III.  Meaning  of  the  term  "  Cause  of  Action;'"  Where  one  Cause 
of  Actio7i  only  is  stated,  although  several  different  hinds  of 
relief  are  demanded. 

§  452.  The  cause  of  action  is  very  often  confounded  with  the 
remedy.     This  mistake    or   misconception   is   peculiarly  apt  to 
occur  in   cases    where,    under   the    code,  the  plaintiff  seeks  to 
obtain  legal  and  equitable  relief  combined,   the  right  to  such 
reliefs  springing  from  the  same  state  of  facts.     To  avoid  this 
tendency  to  confusion,  it  is  absolutely  necessary  to  ascertain  and  fix 
with  certainty  the  true  meaning  of  the  term  "  cause  of  action." 
The    American    courts   of   the  present  day  seem  to  avoid  the 
announcement  of  any  general  principle,   or  the  giving  of  any 
general  definitions.     While,  therefore,  they  have  repeatedly  held 
that  but  one  cause  of  action  was  stated  in  a  case  before  them, 
and  have  carefully   distinguished  it  in  that  instance  from  the 
reliefs  demanded,  they  have  not  attempted  to  define  the  term 
"  cause  of  action  "  in  any  general  and  abstract  manner,  so  that 
this  definition  might  be  used  as  a  test  in  all  other  cases.     We 
shall  obtain  no  direct  help,  therefore,  from  their  decisions ;  but 
they  will  furnish  examples  and  tests  to  determine  whether  any 
definition  which  may  be  framed  is  accurate.     I  shall,  however, 
attempt  a  definition  or  description,  basing  it  upon  an  analysis  of 
the  essential  elements  which  enter  into  every  judicial  proceeding 
for  the  protection  of  a  private  right  on  the  one  side,  and  the 
enforcement  of  a  private  duty  on  the  other.     There  are  such 
elements  or  features  which  necessarily  combine  in  every  action ; 


JOINDER   OP    CAUSES    OF    ACTION.  487 

they  are  independent  of  aii}^  judicial  recognition  ;  they  exist  in 
the  very  nature  of  things  ;  and,  if  we  can  b}^  an  accurate  analysis 
discover  these  elements,  we  shall  at  once  have  obtained  a  correct 
notion  of  the  term  "cause  of  action." 

§  453.  Every  action  is  brought  in  order  to  obtain  some  partic- 
ular result  which  we  term  the  remedy,  which  the  code  calls 
the  "•  relief,"  and  which,  when  granted,  is  summed  up  or  embodied 
in  the  judgment  of  the  court.  This  result  is  not  the  "  cause  of 
action  "  as  that  terra  is  used  in  the  codes.  It  is  true,  this  final 
result,  or  rather  the  desire  of  obtaining  it,  is  the  primary  motive 
which  acts  upon  the  will  of  the  plaintiff  and  impels  him  to  com- 
mence the  proceeding,  and  in  the  metaphysical  sense  it  can 
properly  be  called  the  cause  of  this  action,  but  it  is  certainly  not 
so  in  the  legal  sense  of  the  phrase.  This  final  result  is  the  "  ob- 
ject of  the  action  "  as  that  term  is  frequently  used  in  the  codes 
and  in  modern  legal  terminology.  It  was  shown  in  the  open- 
ing paragraphs  of  the  introductory  chapter  that  every  remedial 
right  arises  out  of  an  antecedent  primary  right  and  correspond- 
ing duty  and  a  delict  or  breach  of  such  primary  right  and  duty 
by  the  person  on  whom  the  duty  rests.  Every  judicial  action 
must  therefore  involve  the  following  elements  :  a  primary  right 
possessed  by  the  plaintiff,  and  a  corresponding  primary  duty 
devolving  upon  the  defendant ;  a  delict  or  wrong  done  by  the 
defendant  which  consisted  in  a  breach  of  such  primary  right  and 
duty ;  a  remedial  right  in  favor  of  the  plaintiff,  and  a  remedial 
duty  resting  on  the  defendant  springing  from  this  delict,  and. 
finally  the  remedy  or  relief  itself.  Every  action,  however  com- 
plicated, or  however  simple,  must  contain  these  essential  ele- 
ments. Of  these  elements,  the  primary  right  and  duty  and  the 
delict  or  wrong  combined  constitute  the  cause  of  action  in  the  le- 
gal sense  of  the  term,  and  as  it  is  used  in  the  codes  of  the 
several  States.  They  are  the  legal  cause  or  foundation  whence 
the  right  of  action  springs,  this  right  of  action  being  identical 
with  the  "  remedial  right "  as  designated  in  my  analysis.  In 
accordance  Avith  the  principles  of  pleading  adopted  in  the  new 
American  system,  the  existence  of  a  legal  right  in  an  abstract 
form  is  never  alleged  by  the  plaintiff;  but,  instead  thereof, 
the  facts  from  which  that  right  arises  are  set  forth,  and  the  right 
itself  is  inferred  therefrom.  The  cause  of  action,  as  it  apjDears 
in  the  complaint  when  properly  pleaded,  will  therefore  always  be 


488  CIVIL   REMEDIES. 

the  facts  from  which  the  plaintiff's  primaiy  right  and  the  defend- 
ant's corresponding  primary  duty  have  arisen,  together  with  the 
facts  which  constitute  the  defendant's  delict  or  act  of  wrong. 

§  454.  The  cause  of  action  thus  defined  is  plainly  different 
from  the  remedial  right,  and  from  the  remedy  or  relief  itself. 
The  remedial  right  is  the  consequence,  the  secondary  right  which 
springs  into  being  from  the  breach  of  the  plaintiff's  primary 
right  by  the  defendant's  wrong,  while  the  remedy  is  the  consum- 
mation or  satisfaction  of  this  remedial  right.  From  one  cause  of 
action,  that  is,  from  -one  primary  right  and  one  delict  being  a 
breach  thereof,  it  is  possible,  and  not  at  all  uncommon,  that  two 
or  more  remedial  rights  may  arise,  and  therefore  two  or  more 
different  kinds  of  relief  answering  to  these  separate  remedial 
rights.  This  is  especially  so  when  one  remedial  right  and  cor- 
responding relief  are  legal,  and  the  other  equitable  ;  but  it  is 
not  confined  to  such  cases.  One  or  two  very  familiar  examples 
will  sufficiently  illustrate  this  statement,  and  will  show  the  neces- 
sity as  well  as  the  ease  of  discriminating  between  the  "  cause  of 
action  "  and  the  remedy.  Let  the  facts  which  constitute  the 
plaintiff's  primary  right  be  a  contract  duly  entered  into  by  which 
the  defendant  agreed  to  convey  to  the  plaintiff  a  parcel  of  land, 
and  full  payment  by  the  plaintiff  of  the  stipulated  price  and  per- 
formance of  all  other  stipulations  on  his  part.  Let  the  delict  be 
a  refusal  by  the  defendant  to  perform  on  his  part.  This  is  the 
cause  of  action,  and  it  is  plainly  single.  From  it  there  arise  two 
remedial  rights  and  two  corresponding  kinds  of  relief;  nameh'", 
the  remedial  right  to  a  compensation  in  damages,  with  the  relief 
of  actual  pecuniary  damages  ;  and  the  remedial  right  to  an  actual 
performance  of  the  agreement,  and  the  relief  of  an  execution 
and  delivery  of  the  deed  of  conveyance.  If  the  plaintiff  in  one 
action  should  state  the  foregoing  facts  constituting  his  cause  of 
action,  and  should  demand  judgment  in  the  alternative  either  for 
damages  or  for  a  specific  performance,  he  would,  as  the  analj-sis 
above  given  conclusively  shows,  have  alleged  but  one  cause  of 
action,  although  the  reliefs  prayed  for  would  be  distinct,  and 
would  have  belonged  under  the  old  system  to  different  forums,  — 
the  common  law  and  the  equity  courts.  Again  :  let  the  plain- 
tiff's primary  right  be  the  ownership  and  right  to  possession  of  ^a 
certain  tract  of  land,  and  let  the  facts  from  which  it  arises  be 
properly  alleged ;  let  the  delict  consist  in  the  defendant's  wrong- 


JOINDER    OP    CAUSES    OF    ACTION.  489 

ful  taking  and  retaining  possession  and  user  of  such  land  for  a 
specified  period  of  time,  and  let  the  facts  showing  this  wrong  be 
properl}^  averred  in  the  same  pleading.  Evidently  the  plaintiff 
will  have  stated  one  single  and  very  simple  cause  of  action.  The 
remedial  rights  arising  therefrom,  and  the  remedies  themselves 
corresponding  thereto,  will  be  threefold,  and  all  of  them  legal: 
namely,  (1)  the  right  to  be  restored  to  possession,  with  the 
actual  relief  of  restored  possession  ;  (2)  the  right  to  obtain  com- 
pensation in  damages  for  the  wrongful  withholding  of  the  land, 
with  the  relief  of  actual  pecuniary  damages  ;  and  (3)  the  right 
to  recover  the  rents  and  profits  received  by  the  defendant  during 
the  period  of  his  possession,  with  the  relief  of  an  actual  pecu- 
niary sum  in  satisfaction  therefor.  Here,  also,  the  single  nature 
of  the  one  cause  of  action  plainly  appears,  and  its  evident  dis- 
tinction from  the  various  remedial  rights  and  actual  remedies 
which  do  or  may  arise  from  it.^ 

§  455.  The  result  of  this  analysis  of  the  necessary  elements 
which  enter  into  every  action  is  simple,  easily  to  be  understood, 
and  yet  exceedingly  important ;  and  the  principle  I  have  thus 
deduced  will  serve  as  an  unerring  test  in  determining  whether  dif- 
ferent causes  of  action  have  been  joined  in  a  pleading,  or  whether 
one  alone  has  been  stated.  If  the  facts  alleged  show  one  primary 
right  of  the  plaintiff,  and  one  wrong  done  by  the  defendant  which 
involves  that  right,  the  plaintiff  has  stated  but  a  single  cause  of 
action,  no  matter  how  many  forms  and  kinds  of  relief  he  may 
claim  that  he  is  entitled  to,  and  may  ask  to  recover ;  the  relief  is 
no  part  of  the  cause  of  action.  In  applying  this  test,  however, 
it  must  be  observed  that  the  single  primary  right,  and  the  single 
wrong,  which,  taken  together,  constitute  the  one  cause  of  action, 
may  each  be  very  complicated.  For  example,  the  primary  riglit  of 
ownership  includes  not  only  the  particular  subordinate  rights  to 
use  the  thing  owned  in  any  manner  permitted  by  tlie  law,  but 
also  similar  rights  to  the  forbearance  on  the  part  of  all  mankind 
to  molest  the  proprietor  in  such  use.  The  facts  which  constitute 
the  delict  complained  of  may  embrace  not  only  the  wrongful  ob- 
taining, and  keeping  possession,  in   such  a   case  as  the  one  last 

1  The  fact  that  the  codes   generally  or  remedies  based  upon  the  same  facts 

seem  to  treat  these  different  claims  tor  which  constitute  a  single  cause  of  action, 

relief  as  distinct  causes  of  action  does  not  See   Larned   v.    Hudson,  57  N.   Y.   151, 

aflFect  the  correctness  of  my  analysis  ;  they  which  is  based  entirely  upon  the  language 

are  plainly  no  more  than  separate  reliefs  of  the  statute. 


490  CIVIL    RKMEDIES. 

supposed,  but  also  the  procuring  and  holding  deeds  of  conveyance, 
or  other  muniments  of  title,  by  which  such  possession  is  made  pos- 
sible, and  to  appear  rightful.  These  suggestions  are  necessary 
to  guard  against  the  mistake  of  supposing  that  a  distinct  cause  of 
action  will  arise  from  each  special  subordinate  right  included  in  the 
general  primary  right  held  by  the  plaintiff,  or  from  each  particular 
act  of  wrong,  which,  in  connection  with  others,  may  make  up  the 
composite  but  single  delict  complained  of. 

§  456.  On  the  other  hand,  if  the  facts  alleged  in  the  pleading 
show  that  the  plaintiff  is  possessed  of  two  or  more  distinct  and 
separate  primary  rights,  each  of  which  has  been  invaded,  or  that 
the  defendant  has  committed  two  or  more  distinct  and  separate 
wrongs,  it  follows  inevitably,  from  the  foregoing  principle,  that 
the  plaintiff  has  united  two  or  more  causes  of  action,  although  the 
remedial  rights  arising  from  each,  and  the  corresponding  reliefs, 
may  be  exactly  of  the  same  kind  and  nature.  If  two  separate 
and  distinct  primary  rights  could  be  invaded  by  one  and  the 
same  wrong,  or  if  the  single  primary  right  should  be  invaded 
by  two  distinct  and  separate  legal  wrongs,  in  either  case  two 
causes  of  action  would  result  ;  a  fortiori  must  this  be  so  when 
the  two  primary  rights  are  each  broken  by  a  separate  and  dis- 
tinct wrong. 

§  457.  The  general  principle  which  I  have  thus  drawn  from  an 
analysis  of  the  essential  elements  which  make  up  a  judicial  action 
can  be  applied  to  all  possible  cases,  and  will  furnish  a  sure  and 
simple  test  by  which  to  determine  whether  one  or  more  causes  of 
action  have  been  embodied  in  any  complaint  or  petition.  The 
demand  for  relief  must  be  entirely  disregarded  ;  whether  single 
or  complex,  it  forms  no  part  of,  and  has  no  effect  upon,  the 
"  cause  of  action."  Rejecting,  therefore,  all  those  portions  of 
the  pleading  which  describe  the  remedy  or  relief  demanded,  the 
inquiry  should  be  directed  exclusively  to  the  allegations  of  fact 
which  set  forth  the  primary  right  of  the  plaintiff  and  the  wrong 
done  by  the  defendant.  If  one  such  right  alone,  however  com- 
prehensive, is  asserted,  and  if  one  such  wrong  alone,  however 
complex,  is  complained  of,  but  one  cause  of  action  is  alleged.  If 
the  examination  discloses  more  than  one  distinct  and  independent 
primary'  right  held  by  the  plaintiff,  and  all  of  them  invaded  by 
the  defendant,  or  more  than  one  distinct  and  independent  wrong 
done  by  the  defendant  to  the  plaintiff's  primary  right  or  rights, 


JOINDER  OF   CAUSES   OF    ACTION.  491 

then  the  complaint,  or  petition,  has  united  dififerent  causes  of  action, 
and  the  rules  Avhich  control  their  joinder  are  brought  into  operation. 
§  458.  Although  the  decisions  do  not  attempt  to  furnish  any- 
general  test  by  which  one  may  determine  the  nature  of  a  "  cause 
of  action,"  and  whether  a  pleading  contains  one  or  more,  they 
fully  recognize  the  fact  that  the  cause  of  action  is  not  to  be  con- 
founded with  the  relief,  and  that  the  demand  for,  or  the  granting 
of,  many  forms  of  remedy,  may  be  based  upon  a  single  cause  of 
action.  The  following  cases  not  only  exhibit  the  proneness  to 
confound  the  remedy  with  the  cause  of  action,  and  the  necessity 
of  understanding  the  essential  distinction  between  them,  but  they 
also  illustrate,  and  fully  sustain,  the  foregoing  principles,  which  I 
have  proposed  as  the  test  by  which  such  distinction  may  be  at 
once  recognized :  A  complaint  alleged  that  the  plaintiff,  being 
indebted  to  the  defendant  upon  several  promissory  notes  held  by 
the  latter,  had  assigned  to  it  a  bond  and  mortgage  as  collateral 
security  ;  that  the  defendant  had  collected  the  amount  due  on 
the  bond  and  mortgage,  which  was  more  than  sufficient  to  pay  all 
the  notes  in  full ;  that  a  surplus  was  left  remaining  in  its  hands, 
and  upon  these  facts  demanded  payment  by  the  defendant  of  such 
balance,  and  surrender  and  cancellation  of  the  notes  so  given  by 
the  plaintiff.  To  this  complaint  the  defendant  demurred,  on  the 
ground  that  causes  of  action  had  been  improperly  joined.  The 
New- York  Court  of  Appeals  held  that  there  was  no  uniting  at  all 
of  different  causes  of  action,  and  that  only  a  single  one  was  stated, 
although  two  distinct  reliefs  were  demanded.^ 

^  Cahoon  v.  Bank  of  Utica,  7  N.  Y.  amount  due  that  there  seems  to  be  any 
486.  Tlie  defendant  insisted  that  a  cause  room  for  mistake  as  to  the  character  of 
of  action  for  the  recovery  of  money  was  the  claim.  If  that  remained  to  be  ascer- 
united  with  one  equitable  in  its  nature,  tained,  it  would  be  the  clearest  possible 
The  court  said,  per  Johnson  J.  (p.  488) :  case  for  an  account ;  and  yet  this  case  is 
"  The  ground  on  which  this  case  ought  to  not  clearer  than  the  one  before  us.  .  . 
be  put  is,  that  the  complaint  does  not  con-  It  is,  in  short,  a  complaint  by  a  debtor  to 
tain  two  causes  of  action.  The  claim  is  have  his  obligation  delivered  up  and  can- 
single.  .  .  .  The  plaintiff  now  seeks  an  celled,  and  an  account  of  the  securities 
account  of  the  proceeds  of  the  mortgage  pledged,  and  payment  of  the  surplus. 
and  of  their  disposition,  and  to  have  the  That  a  claim  so  simple  in  its  character,  so 
balance  paid  over,  and  the  notes  which  well  recognized,  and  even  familiar,  under 
are  satisfied  delivered  up.  It  is  no  an-  the  old  practice  in  chancery,  should  be 
swer  to  say  that  the  balance  of  moneys  seriously  regarded  as  two  distinct  causes 
could  have  been  recovered  in  an  action  of  action,  requiring  distinct  modes  of  trial, 
for  money  had  and  received.  It  would  and  incapable  of  being  joined  in  a  single 
none  the  less  have  been  the  proper  foun-  suit,  is  quite  as  si'.rprishig  as  the  doctrine 
dation  for  a  bill  in  equity.  ...  It  is  only  itself,  if  held  to  be  well  founded,  would 
because   there   is   no   dispute   about  the  be  inconvenient."      See  also  Connor  v. 


492 


CIVIL    REMEDIES. 


§  450.  Actions  brought  to  reform  instruments  in  writing,  such 
as  policies  of  insurance,  and  other  contracts,  mortgages,  deeds  of 
conveyance,  and  the  like,  and  to  enforce  the  same  as  reformed  by  , 
judgments  for  the  recovery  of  the  money  due  on  the  contracts,  or 
for  the  foreclosure  of  the  mortgages,  or  for  the  recovery  of  pos- 
session of  the  land  conveyed  by  the  deeds,  fall  within  the  same 
general  principle.  One  cause  of  action  only  is  stated  in  such 
cases,  however  various  maybe  the  reliefs  demanded  and  granted.^ 
The  principle  also  applies  to  actions  brought  against  a  fraudulent 
grantor  or  assignor  and  his  grantees  or  assignees  to  set  aside  the 
transfers,  although  made  at  different  times  and  to  different  per- 
sons, and  to  subject  the  property  to  the  plaintiff's  liens,  as  in 
creditors'  suits  ;  or  to  compel  a  reconveyance  and  restoration  of 
possession  of  the  property,  as  in  the  case  of  suits  by  .defrauded 
heirs  or  cestuis  que  trustent^  and  the  like.  There  is  but 
one  cause  of  action  against  the  various  defendants  in  these  and 
similar  suits.^     In  like  manner,  the  principle  applies  to  actions 


Board  of  Education,  10  Minn.  439,  444 ; 
Sortore  v.  Scott,  6  Lans.  271,  275,  276; 
Reedy  v.  Smith,  42  Cal.  245,  250. 

1  Bidwell  V.  Astor  Mut.  Ins.  Co.,  16 
N.  Y.  263  ;  N.  Y.  Ice  Co.  v.  N.  W.  Ins. 
Co.,  23  N.  Y.  357 ;  Guernsey  v.  Am.  Ins. 
Co.,  17  Minn.  104,  108,  actions  to  reform 
a  policy  of  insurance,  and  to  recover  the 
amount  due  on  it  as  reformed  ;  Gooding 
V.  McAllister,  9  How.  Pr.  123,  action  to 
reform  a  written  contract,  and  to  recover 
a  raone}' judgment  upon  it  for  the  sum 
due  wiien  corrected ;  McCown  v.  Sims, 
69  N.  C.  159  ;  Rigsbee  v.  Trees,  21  Ind. 
227,  actions  to  reform  a  promissory  note, 
and  to  recover  the  amount  tiius  shown  to 
be  due.  The  decision  in  the  latter  case  is 
referred,  Jiowever,  to  the  special  provision 
of  the  Indiana  code,  §  72,  quoted  supra  in 
§  440;  Hunter  v.  McCoy,  14  Ind.  528; 
McCiurg  )•.  Phillips,  49  Mo.  315,  316, 
actions  to  reform  a  mortgage,  to  foreclose 
as  thus  corrected,  or  to  reform  a  deed  and 
quiet  the  title  thereunder ;  Walkup  v. 
Zehring,  13  Iowa,  306,  action  to  correct 
mistakes  in  a  series  of  title-deeds,  to  set 
aside  another  deed  of  tlie  same  land,  and 
to  quiet  the  plaintiff 's  title  and  possession. 
See,  however,  per  contra,  Harrison  r. 
Juneau  Bank,  17  Wise.  340,  which  was  a 
suit  to  reform  a  contract,  and  to  recover 


the  money  due  upon  it  when  corrected. 
Dj.xon  C.  J.  said  (p.  350)  :  "  The  com- 
plaint contains  two  distinct  causes  of  ac- 
tion,*—  the  one  equitable,  the  other  legal, 
—  which  in  strictness  should  have  been 
separately  stated.  That  for  the  reforma- 
tion was  equitable,  and  was  for  the  court ; 
the  other,  for  the  recovery  of  money,  was 
legal,  and  was  for  the  jury."  The  learned 
court  has  here  fallen  into  the  evident  error 
of  confounding  the  causeof  action  with  the 
relief;  and  its  decision  is  in  direct  conflict 
with  the  doctrine  established  by  the  nu- 
merous authorities  quoted  above  and  be- 
low, which  involve  similar  facts  and  the 
same  principle.  The  doctrine  of  this  case 
has  liecome  established  in  Wisconsin  ;  a 
union  of  equitable  and  legal  causes  of  ac- 
tion is  hardly  permitted  in  that  State. 

-  Bassett  v.  Warner,  23  Wise.  673, 
685  ;  Blake  v.  Van  Tilborg,  21  Wise.  672 ; 
Bowers  v.  Keesecher,  9  Iowa,  422  ;  Howse 
V.  Moody,  14  Fla.  59,  63,  64.  These 
were  actions  by  heirs,  or  other  persons  in 
the  position  of  beneficiaries,  against  ad- 
ministrators, or  other  individuals  holding 
a  fiduciary  relation  to  them,  and  their 
grantees  or  assignees,  to  set  aside  fraudu- 
lent transfers,  to  compel  an  accounting  and 
a  restoration,  and  otlier  like  reliefs.  The 
doctrine  of  tlie  text  was  freely  aj)plied  in 


JOINDER    OP    CAUSKS    OF    ACTION.  493 

brought  by  persons  holding  the  equitable  title  to  lands  against 
those  in  whom  the  legal  title  is  vested,  for  the  purpose  of  setting 
aside  the  deeds  under  whicli  the  latter  claim,  on  the  ground  of 
fraud  or  other  illegality,  and  of  recovering  or  confirming  posses- 
sion and  quieting  title.  The  different  reliefs  which  the  plaintiff 
seeks  to  obtain  do  not  constitute  different  causes  of  action.^  It 
also  applies  to  actions  for  the  foreclosure  of  mortgages,  where  the 
plaintiff'  seeks  to  obtain  not  only  a  sale  of  the  mortgaged  prem- 
ises, but  also  a  judgment  for  a  deficiency  against  the  mortgagor 
and  other  persons  who  are  personally  liable  for  the  debt.  In 
several  States,  the  codes  expressly  authorize  such  actions.^  The 
weight  of  authority,  however,  in  those  States  whose  codes  do  not 
contain  such  express  provisions,  seems  to  be  the  other  way  ;  and 
the  rule  therein  seems  to  be  generally  established,  that,  in  an 
action  of  foreclosure,  a  judgment  for  a  deficiency  cannot  be  ob- 
tained against  any  persons  liable  for  the  debt  other  than  the 
mortgagor  himself ;  it  is  said  that  the  making  such  third  person 
a  party,  and  the  praying  a  decree  for  deficiency  against  him,  is  a 
misjoinder  of  causes  of  action.^  A  suit  by  the  vendor  of  land  to 
recover  the  purchase  price,  and  to  enforce  his  lien  therefor  upon 
the  premises  sold  or  conveyed,  includes  but  one  cause  of  action, 
the  double  relief  plainly  arising  from  the  single  state  of  facts,"* 

§  460.  The  following  are  some  additional  instances  in  which 
the  doctrine  has  been  approved  and  enforced  by  the  courts,  and 
the  cause  of  action  held  to  be  a  single  one  ;  An  action  against  a 

them  all :  Winslow  i-.  Dousman,  18  Wise.  '  Faesi  v.  Goetz,  15  Wise.  231 ;  Cary 

456  ;    Gates   v.    Boomer,    17  Wise.  455 ;  v.  Wheeler,  14  AVis-c.  281 ;  Jesup  v.  City 

North  V.  Bradway,  9  Minn.  18-3  ;  Chau-  Bank,  14  Wise.  331 ;  Stilwell  i:  Kellogg, 

tauqua  Co.  Bank  v.  White,  6  N.  Y.  236.  14  Wise.  461 ;  Borden  v.  Gilbert,  13  Wise. 

These  actions  were  all  ordinary  ereditors'  670;  Doan  v.  Holly,  26  Mo.  186  ;  25  Mo. 

suits.  357.    In  Ladd  v.  James,  10  Ohio  St.  437,  it 

1  riiillips  r.  Gorham,   17  N.   Y.   270;  was  said  that  when  a  mortgage  is  given  to 

Laub  V.  Buckmiller,  17  N.  Y.  620;  Lattin  seeure  a  note,  and  an  aetion  is  brought 

V.  McCarty,  41  X.  Y.  107.     For  tlie  faets  setting   out   both,  and    demanding  judg- 

and  extracts  from  the  opinions  in  these  ment  for  money  on  the   note,  and  for  a 

important  eases,  see  su])ra,  eh.  1,  §§  68,  foreclosure  and  sale  on  the  mortgage,  any 

78,  and  notes.  issue  of  fact  afleeting  the  former  demand 

-  Conn.  Mut.  Life  Ins.  Co.  v.  Cross,  18  for  relief  must  be  tried  by  a  jury  if  either 

Wise.  109 ;  Sauer  v.  Steinbauer,  14  Wise,  party  require  it.     See  also  McCarthy  v. 

70;  Weil  v.  Howard,  4  Nev.  384  ;  Greither  Garraghty,  10  Ohio  St.  438. 

V.   Alexander,    15    Iowa,    470,   473,   per  ■•  Stepiiens   v.   Magor,  25  Wise.   533; 

Wright    C.  J. ;  Eastman    v.  Turman,  24  Turner  v.  Tierce,  34  Wise.  658 ;  Walker 

Cal.  379,  382,  per  Sawyer  J. ;  Rollins  v.  v.   Sedgwick,  8   Cal.  398.     In   tlie  latter 

Forbes,  10  Cal.  299;  Farwell  v.  Jackson,  case,  the  action  was  on  notes  given  for 

28  Cal.  105.  the  price. 


494  CIVIL   REMEDIES. 

husband  and  wife  brought  upon  an  alleged  indebtedness  of  both, 
and  an  agreement  of  both  to  secure  the  same  by  a  mortgage  upon 
the  wife's  lands,  although  at  the  trial  the  debt  was  shown  to  be 
against  the  husband  alone,  and  no  such  agreement  as  the  one 
alleged  was  proven  ;  ^  an  action  by  the  vendee  in  a  land  contract 
for  a  specific  performance  and  for  damages,  where  judgment  was 
given  for  damages  alone  ;  ^  an  action  by  the  heirs  and  adminis- 
trator of  a  deceased  cestui  que  trust  against  the  trustee  who  held 
both  real  and  personal  estate  in  trust,  for  an  accounting,  a  con- 
veyance of  the  land,  and  a  transfer  of  the  personal  property  ;  ^  an 
action  to  remove  a  nuisance,  for  damages,  and  for  an  injunction  ;  * 
for  admeasurement  of  dower,  possession  and  recovery  of  rents  and 
profits  ;  ^  by  one  tenant  in  common  against  the  other,  to  compel 
a  specific  performance  of  the  latter's  agreement  to  convey  his 
share,  or  for  a  partition  ;  ^  an  action  by  a  stockholder  against  a 
bank,  its  officers,  and  their  assignee,  to  set  aside  an  assignment, 
to  remove  the  officers,  for  an  accounting,  and  for  a  winding-up  of 
the  corporation,  —  all  based  upon  the  fraudulent  p»ractices  of  the 
officers  ;  '^  where  a  debtor  who  had  executed  a  deed  to  A.  in  trust 
for  his  creditor  B.  alleged  that  the  two  had  fraudulently  sold  the 
land  which  had  been  bought  in  by  B.,  and  sought  to  set  aside  the 
sale  and  to  redeem  ;  ^  an  accounting  against  the  executor  of  a 
father  and  the  administrator  of  his  son,  Avhere  the  estates  were  so 
mingled  and  confused  that  a  separate  accounting  was  impossible  ;  ^ 
an  action  against  the  executor  of  a  lessee  Avho  had  continued  to 
occup3^  the  premises,   to  recover  the  rent  accruing  before  the 
death,   as   well  as  that  accruing  after  ;  ^°  an  action  to  recover 
damages  for  negligently  driving  against  and  injuring  the  plaintiff 
and  his  horse  and  carriage  ;  ^^  an  action  to  recover  damages  for 

1  Marquat  v.  Marquat,  12  N.  Y.  33G.         the  contract,    and    the   otlier   upon    the 

-  Barlow  v.  Scott,  24  N.  Y.  40;  Stern-    ownership  in  common. 

berger   v.    McGovern,   56   N.   Y.   12,  21.  '  MitchelU.  Bankof  St.  Paul,  7  Minn. 

And   see   Duvall  v.  Tinsley,  54  Mo.  93,  252,  255. 

95.  8  McGlotlilin  v.  Hemery,  44  Mo.  350. 

-  Kichtmyer  v.  Kichtmyer,  50   Barb.  The  opinion  in   this  case  is  an  elaborate 
55.  discussion  of  the  entire  doctrine. 

♦  Davis  V.  Lambertson,  56  Barb.  480.  »  McLachlan  v.  Staples,  13  Wise.  448, 

5  Brown  !'.  Brown,  4  Kobt.  688.  451. 

«  Hall  IV  Hall,  158  How.  Pr.  97.     This  '"  Pugsley  v.  Aikin,  11  N.  Y.  494. 

/decision  is  certainly  opposed  to  the  prin-  "  Howe  v.  Peckham,  10  Barb.  056  (S. 

ciple  stated  in  the  text,  and  to  the  weight  T.).     The  correctness  of  this  decision  is 

of    authority.      Two    different    primary  more   than   doubtful.      Mason   J.  makes 

rights  are  clearly  stated  ;  one  based  upon  the  cause  of  action  to  consist  of  the  delict 


JOINDER    OF    CAUSES    OF    ACTION.  495 

fraudulent  representations  in  the  sale  of  some  sheep,  the  plaintiff 
claiming  special  damages  for  the  destruction  of  his  entire  llock, 
caused  by  the  communication  of  disease  from  those  which  he  had 
purchased  ;  ^  an  action  for  malicious  prosecution,  in  which  special 
acts  of  wrong  and  damage  were  alleged  ;  ^  and,  it  has  been  said, 
an  action  to  recover  damages  for  several  distinct  and  separate 
breaches  of  one  contract.^ 

§  461.  To  the  principle  which  I  have  thus  stated,  and  the  doc- 
trine approved  by  such  an  overwhelming  weight  of  judicial 
authority,  there  was  opposed  a  series  of  decisions  in  Missouri, 
which,  while  they  remained  unquestioned,  rendered  the  law  of 
that  State  widely  different  in  this  respect  from  that  which  was 
established  in  other  commonwealths.  The  Supreme  Court  held 
in  numerous  cases,  and  a  great  variety  of  circumstances,  that 
where  upon  the  facts  the  plaintiff  would  ultimately  be  entitled  to 
different  kinds  of  relief,  —  such  as,  for  example,  the  setting 
aside  deeds  of  conveyance  to  the  defendant,  and  the  recovery  of 
the  possession  of  the  land,  —  if,  after  alleging  all  the  facts,  he 
should  demand  the  separate  reliefs,  his  complaint  would  contain 
different  causes  of  action,  and  would  be  held  bad  on  demurrer,  or 
even  judgment  arrested  after  verdict,  or  reversed  on  appeal 
because  of  the  error.  In  other  words,  the  court  completely 
identified  the  relief,  and  even  the  prayer  for  it,  with  the  cause  of 
action."^  The  court  has,  however,  recently  receded  from  this 
most  untenable  position,  and  seems  to  have  overruled  this  long 
series  of  decisions.^  The  Missouri  court  seems  to  have  finally 
brought  the  law  of  that  State  in  reference  to  the  subject-matter 
under  consideration  into  harmony  with  the  plain  intent  of  the 
code  aiKl  the  well-settled  doctrines  of  equity  jurisprudence,  as 
well  as  into  a  conformity  with  the  rule  settled  by  the  unanimous 
consent  of  other  courts. 

alone.     Certainly  the  plaintiff's  right  to  53    Mo.    176,  that   rlifferent   items   of  an 

his  own  person  and  to  his  property  were  account  or  claim  constitute  but  one  cause 

different  rights,  and  the  injury  to  them  of  action, 
created  two  causes  of  action.  *  Curd    i".    Lackland,    43    Mo.    139; 

1  Wilcox  V.  McCoy,  21  Ohio  St.  655,  Wynn  c.  Cory,  43  Mo.  301  ;  Gray  c. 
citing  Packard  v.  Slack,  32  Vt.  9.  Payne,  43  Mo.  203;  Peyton  v.  Rose,  41 

2  Schenck  L'.  Butsch,  32  Ind.  338.  Mo.  257;  Gott  r.    Powell,   41   Mo.  416; 

3  Fisk  V.  Tank,  12  Wise.  276,  298,  per  Moreau  v.  Detchemendy,  41  Mo.  -ISl. 
Dixon  C.  J.  The  acts  and  defaults  com-  See  also  other  cases  of  the  same  import, 
plained   of  in    this   case   can   hardly   be  cited  supra,  §§  92,  79. 

called    distinct    and    separate    breaches.  ^  Henderson  v.  Dickey,   50    .Mo    161, 

See  Iloehring  r.  Huebschmann,  34  Wise.  165,  per  Wagner  J. ;  Duvall  v.  Tinsley, 
185  ;  Kansas  City  Hotel  Co.  v.  Sigement,     54  Mo.  93. 


496  CIVIL    REMEDIES. 

§  4G2.  I  have  thus  described  the  cases  in  which  but  one  cause 
of  action  is  alleged,  although  the  many  and  sometimes  conflicting 
demands  for  relief  may  make  it  appear  thi;it  several  causes 'of 
action  have  been  united  and  mingled  together  in  the  pleading.  I 
have  stated  a  general  principle  which  will  furnish  a  certain  test 
for  determining  all  such  cases,  by  ascertaining  what  allegations 
contain  the  "  cause  of  action,"  and  what  contain  the  demands 
for  relief,  and  by  showing  the  essential  nature  of  each,  and  the 
necessary  distinctions  between  them.  I  shall  now  proceed  to 
consider  the  classes  of  cases  in  which  different  causes  of  action 
are  united  either  properly  or  improperly. 

IV.  The  Joinder  of  Causes  of  Action  arisinrj  out  of  the  same  Trans- 
action or  Transactions  connected  with  the  sa^ne  Subject  of  Ac- 
tion;  Legal  meaning  of  the  tertns  '-''Transaction  "  arid  '•'■  Subject 
of  Action y 

§  463.  The  class  which  is  described  by  the  language  of  the 
codes  quoted  in  the  above  heading  is  broad,  comprehensive, 
vague,  and  uncertain.  The  principal  design  was  undoubtedly  to 
embrace  the  vast  mass  of  equitable  actions  and  causes  of  action 
which  could  not  be  classified  and  arranged  in  any  more  definite 
manner ;  and  the  language  was  j)roperly  left  vague,  so  that  it 
might  not  in  any  manner  interfere  with  the  settled  doctrines  of 
equitable  procedure  and  pleading,  parties  and  remedies.  Al- 
though this  general  design  is  very  apparent,  yet  it  is  no  less 
evident  that  the  author  of  the  clause  failed  to  distinguish 
between  the  "  cause  of  action  "  and  the  remedy  or  relief  which 
is  sought  to  be  obtained  by  means  of  the  action.  Tlie  most  fre- 
quent application  of  this  class  in  the  actual  administration  of 
justice  lias  been  and  will  be  to  equitable  actions :  but  the  lan- 
guage is  not  confined  to  them  ;  it  includes  legal  controversies  as 
well.  If  all  the  otlier  requisites  of  the  statute  are  comj^lied  with, 
legal  causes  of  action  of  the  most  dissimilar  character  —  for 
example,  contract  and  tort  —  maybe  united  in  one  proceeding, 
provided  they  all  arise  out  of  the  same  transaction,  or  out  of 
transactions  connected  with  the  same  subject  of  action.  With 
respect  to  equitable  cases,  there  cannot  be  much  difficulty  ;  it  is 
always  easy  to  say,  and  perhaps  to  see,  that  the  facts  constituting 
the  causes  of  action  arise  at  least  in  some  vague  manner  from  the 


JOINDER   OF   CAUSES   OF   ACTION.  497 

same  transaction,  or  from  transactions  connected  with  the  same 
subject  of  action.  With  respect  to  legal  cases  the  difficulty  is 
much  greater,  and  is  sometimes  impossible  to  be  overcome  by  any 
logical  reasoning.  The  question  will  be  sometimes  presented, 
not  only  whether  the  facts  constituting  two  or  more  causes  of 
action  have  arisen  from  the  same  transaction,  but  whether  it  is 
possible,  in  the  nature  of  things,  that  they  could  arise  in  such  a 
manner. 

§  464.  A  full  interpretation  of  the  language  used  in  the  codes 
"would  result  in  a  general  rule  applicable  to  all  actions  ;  a  rule 
which  should  determine  when  causes  of  action  may  and  do  arise 
out  of  the  same  transaction,  or  out  of  transactions  connected 
with  the  same  subject  of  action.  This  rule  would  be  obtained, 
not  from  an  analysis  of  all  possible  causes  of  action,  but  from  a 
construction  of  the  language  used  by  the  legislature  ;  and  it 
would  require  a  legal  definition,  in  an  accurate  but  universal 
manner,  of  the  terms  "  transaction,"  "  connected  with,"  and 
"  subject  of  action."  These  three  terms  are  the  controlling 
words  upon  which  the  whole  clause  turns  ;  and  until  the  courts 
shall  have  defined  them  in  a  general  and  positive  manner,  all 
attempts  at  interpreting  the  language  and  deducing  any  com- 
prehensive and  practical  rule  from  it  must  be  futile.  Until  such 
a  definition  is  made,  each  case  must  be  decided  upon  its  own 
circumstances,  in  a  mere  empirical  method,  so  that  the  confusion 
and  uncertainty  will  continue,  and  even  increase,  in  the  place  of 
the  uniformity  and  certainty  in  the  practice  which  the  profession 
and  suitors  have  the  right  to  demand.  In  short,  the  courts  must 
break  away  from  the  judicial  habit  which  has  of  late  years  grown 
upon  them,  and  must  be  willing  to  attempt  the  discussion  and 
settlement  of  definitions,  principles,  and  doctrines  connected 
with  the  reformed  procedure,  in  a  general  and  comprehensive 
form.  Although  little  aid  can  be  derived  from  judicial  decisions, 
I  shall  attempt  the  extremely  difficult  task  of  defining  these 
terms,  or,  to  be  more  accurate,  shall  attempt  to  describe  their 
legal  significance  and  effect,  and  thus  to  aid  in  reaching  a  gen- 
eral rule  or  principle  by  which  to  determine  whether  any  given 
cases  are  embraced  within  the  class  designated  by  the  legis- 
lature. 

§  465.  In  corroboration  of  the  statement  made  above  in  regard 
to  the  general  purport  and  object  of  the  class  in  question,  I  quote 

32 


498  CIVIL  REMEDIES. 

the  language  used  by  an  eminent  judge  of  the  New-York  Court 
of  Appeals,  which,  while  it  contains  some  unjust  remarks  upon 
the  authors  of  the  New-York  code,  is  a  very  pointed  and  accu- 
rate description  of  the  clause  and  of  its  immediate  design :  "  In 
respect  to  the  joinder  of  causes  of  action,  the  provision  of  the 
law,  so  far  as  is  material  to  the  question,  now  is,  that  '  the  plain- 
tiff may  unite  in  the  same  complaint  several  causes  of  action, 
whether  they  be  such  as  have  heretofore  been  denominated  legal 
or  equitable,  or  both,  where  they  all  arise  out  of  the  same  trans- 
action or  transactions  connected  with  the  same  subject  of  action.' 
The  authors  of  the  code,  in  framing  this  and  most  of  its  other 
provisions,  appear  to  have  had  some  remote  knowledge  of  what 
the  previous  law  had  been.  This  provision  as  it  now  stands 
was  introduced  in  the  amendment  of  1852,  because  the  successive 
codes  of  1848,  1849,  and  1851,  with  characteristic  perspicacity, 
had  in  effect  abrogated  equity  jurisdiction  in  many  important 
cases  by  failing  to  provide  for  a  union  of  subjects  and  parties  in 
one  suit  indispensable  to  its  exercise.  This  amendment,  there- 
fore, was  not  designed  to  introduce  any  novelt}^  in  pleading  and 
practice.  Its  language  is,  I  think,  well  chosen  for  the  purpose 
intended,  because  it  is  so  obscure  and  so  general  as  to  justify  the 
interpretation  which  shall  be  found  most  convenient  and  best 
calculated  to  promote  the  ends  of  justice.  It  is  certainly  impos- 
sible to  extract  from  a  provision  so  loose,  and  yet  so  comprehen- 
sive, any  rules  less  liberal  than  those  which  have  long  prevailed 
in  courts  of  equity."  ^  Mr.  Justice  Comstock  plainly  regards  it 
unnecessary,  if  not  impossible,  to  attempt  a  definition  of  the  terms 
emploj'ed  in  the  passage  which  he  quotes,  and  would  leave  each 
case  to  be  decided  upon  its  own  circumstances.  This  is  un- 
doubtedly the  easier  method  for  the  courts  to  pursue ;  but  suit- 
ors, as  well  as  the  profession,  have  a  right  to  ask  from  them  some 
rules  by  which  a  reasonable  degree  of  certainty  as  to  the  correct 
manner  of  bringing  and  conducting  causes  shall  be  secured.  Re- 
garded as  a  statutory  enactment  of  the  equity  doctrine  touching 
the  joinder  of  causes  of  action  in  one  suit,  the  clause  perhaps 
requires  no  special  interpretation,  since  it  may  be  assumed  to 
permit  the  previous  equitable  principles  and  rules  of  procedure  to 
exist  unchanged.     In  this  light  alone  it  is  treated  by  Mr.  Justice 

1  N.  Y.  &  N.  H.  R.  R.  V.  Schuyler,  17  N.  Y.  502,  604,  per  Comstock  J. 


JOINDER   OF   CAUSES   OP   ACTION.  499 

Comstock  in  the  extract  taken  from  his  opinion.  But  as  it  ap- 
plies also  to  legal  actions,  and  as  tliere  were  no  prior  doctrines 
and  rules  of  practice  in  courts  of  law  which  it  reproduces  or 
suffers  to  remain  operative,  it  does  as  to  them  "introduce  a  nov- 
elty in  pleading  and  practice."  In  order  to  fix  its  application  in 
such  cases,  the  meaning  of  its  controlling  terms  must  be  deter- 
mined. There  was  no  prior  rule  of  the  common-law  procedure 
which  permitted  the  union  of  a  claim  upon  contract  with  another 
arising  from  violence  to  property  or  person  under  an}'-  circum- 
stances, and  yet  it  is  possible  that  such  a  combination  may  be  made 
by  virtue  of  this  particular  provision. 

§  466.  I  shall  first  collect  some  general  observations  which 
have  been  made  by  the  courts  upon  the  legal  import  of  these 
terms,  and  shall,  with  whatever  aid  is  derived  from  the  judicial 
interpretation,  attempt  an  independent  analysis.  A  complaint 
united  a  cause  of  action  for  an  assault  and  battery  with  one  for 
slander,  alleging  that  the  defamatory  words  Avere  uttered  while 
the  beating  was  in  actual  progress.  To  a  demurrer  for  a  mis- 
joinder, it  was  answered  that  both  causes  of  action  arose  out  of 
the  same  transaction.  The  court  disposed  of  this  position  in  the 
following  manner :  "  It  by  no  means  follows,  that,  because  the 
two  causes  of  action  originated  or  happened  at  the  same  time, 
each  cause  arose  out  of  the  same  transaction.  It  is  certainly 
neither  physically  nor  morally  impossible  that  there  should  be 
two  transactions  occurring  simultaneously,  each  differing  from 
the  other  in  essential  attitudes  and  qualities.  As  here,  the  trans- 
action out  of  which  the  cause  of  action  for  the  assault  springs  is 
the  beating,  the  physical  force  used  ;  while  the  transaction  out  of 
which  the  cause  of  action  for  the  slander  springs,  is  not  the  beat- 
ing or  the  force  used,  but  the  defamatory  words  uttered.  The 
maker  of  a  promissory  note  might,  at  the  very  instant  of  its 
delivery  and  inception,  falsely  call  the  payee  a  thief;  and  yet  who 
would  say  that  the  two  causes  of  action  arose  out  of  the  same 
transaction  ?  It  has  been  held  that  a  contract  of  warrant}^  and  a 
fraud  practised  in  the  sale  of  a  horse  at  the  same  trade  did  not 
arise  out  of  the  same  transaction,  so  as  to  be  connected  each  with 
the  same  subject  of  action,  and  that  a  complaint  containing  both 
causes  of  action  was  demurrable.^     Assault  and  battery  and  slan- 

1  Sweet  V.  Ingerson,  12  How.  Pr.  331. 


600  CIVIL    REMEDIES. 

der  are  as  separate  and  distinct  causes  of  action  as  any  two 
actions  uliatever  that  can  be  named.  The  subjects  of  the  two 
actions  are  not  connected  with  each  other.  Each  subject  is  as 
distinct  and  different  from  tlie  otlier  as  tlie  character  of  an  indi- 
vidual is  from  his  bodily  structure.  The  question  is  not  whether 
both  causes  of  action  sprang  into  existence  at  the  same  moment 
of  time.  Time  has  very  little  to  do  with  solving  the  real  ques- 
tion. The  question  is,  Did  each  cause  of  action  accrue  or  arise 
out  of  the  same  transaction,  the  same  thing  done  ?  It  is  apparent 
that  each  cause  of  action  arose,  and  indeed  must  necessarily  have 
arisen,  out  of  the  doing  of  quite  different  things  by  the  defend- 
ant,—  different  in  their  nature,  in  all  their  qualities  and  charac- 
teristics, and  inflicting  injuries  altogether  different  and  dissimilar. 
The  same  evidence  would  not  sustain  each  cause  of  action,  and 
they  may  require  different  answers."  ^  It  has  been  held,  how- 
ever, that  the  two  causes  of  action  under  exactly  the  same  cir- 
cumstances do  arise  out  of  the  same  transaction,  and  may  be 
united  in  the  same  complaint.^ 

§  467.  A  complaint  contained  one  cause  of  action  for  the 
breach  of  a  warranty  given  on  the  sale  of  a  horse,  and  a  second 
cause  of  action  for  fraudulent  representations  respecting  the 
quality  and  condition  of  the  horse  made  at  the  same  sale,  the 
plaintiff  claiming  that  both  causes  of  action  arose  out  of  the  same 
transaction.     The  court  said  :   "  It  is  somewhat  difficult  to  deter- 

1  Anderson  v.  Hill,  53  Barb.  238,  245,  lislied  a  system  for  the  joinder  of  actions 

per  T.  A.  Johnson  J.  ;  and  see  Dragoo  v.  more  philosophical  and  complete  in  itself. 

Levi,  2  Duval  (Ky),  520,  which  reaches  It  follows  the  rules  of  equity  more  closely 

the  same  conclusion.    It  should  be  noticed  than  it  does  those  of  the  common  law, 

that  Judge  Jolinson  offers  no  affirmative  one  object  seeming  to   be  to  avoid  the 

definition  of     "  transaction,"    except    in  multiplicity  of  actions,  and  to  settle   in 

making  "  the  same  transaction  "  equiva-  one  suit  as  equity  did,  as  far  as  practi- 

lent  to  "  the  same  thing  done."  cable,  the  whole  subject-matter  of  a  con- 

■^  Brewer  v.  Temple,  15  How.  Pr.  286  ;  troversy.      It  is  probably  true   tliat   the 

Harris  v.  Avery,  5  Ivans.  146.     The  first  two  causes  of  action  for  assault  and  bat- 

of  these  was  a  special  term  decision,  and  tery  and  for   slander  cannot,  under  our 

is   expressly    overruled   in    Anderson    v.  code,  be  united,  unless  both  arise  out  of 

Hill.'    I  quote  from    the  opinion  in   the  the    same    transaction ;    but   we   do   not 

other  as  an  example  of  the  argument  on  know  any  reason  why  they  should  not  be 

the  other  side  of  the  question.     The  de-  united  when  both  do  arise  out  of  the  same 

fendant  had  wrongfully  arrested  the  plain-  transaction."      The    court    here   simply 

tiff,  and  at  the  same  time  called  him   a  assumes  that  both  causes   of  action   did 

thief.      The  court  say  :  "  We  think  that  arise  out  of   the    same  transaction,  but 

these  facts  constitute   only  one  transac-  does  not  venture  upon  any  reasons   for 

tion.  .  .  .  Our  code  has  abolished  all  com-  that  opinion.      The   decision  is   a   mere 

mon-law  forms  of  action,  and  has  estab-  begging  of  the  question. 


JOINDER   OF   CAUSES   OP   ACTION.  501 

mine  the  precise  extent  and  boundaries  of  the  first  subdivision 
of  §  167  of  the  code,  which  provides  for  the  joinder,  of  causes  of 
action  where  they  arise  out  of  the  same  transaction  or  transac- 
tions connected  with  the  same  subject  of  action.  In  this  case  the 
phiintiff  first  counts  in  assumpsit  on  an  alleged  warranty  of  the 
horse,  and  in  the  second  count  for  fraud  and  deceit  in  wrongfully 
concealing  the  defects  of  the  same  horse.  It  may  be  true  that 
these  causes  of  action  arise  out  of  the  same  transaction,  to  wit, 
the  bargain  for  the  purchase  of  the  horse  ;  but  are  they  connect- 
ed with  the  same  subject  of  action?  The  subject  of  the  action  is 
either  the  contract  of  warranty,  or  it  is  the  fraudulent  conceal- 
ment of  the  defects  complained  of.  These  causes  of  action  can- 
not consist  with  each  other.  I  am  inclined  to  think  that  the 
object  of  the  section  was  to  allow  the  plaintiff  to  include  in  his  com- 
plaint two  or  more  causes  of  action  actually  existing,  arising  out  of 
the  same  transaction,  and  when  a  recovery  might  be  had  for  both 
in  the  same  action ;  and  that  the  joinder  must  be  of  those  causes 
of  action  which  are  consistent  with,  not  those  which  are  contra- 
dictory to,  each  other."  ^  The  judge  here  fell  into  at  least  one 
palpable  error  and  misreading  of  the  statute.  If  the  causes  of 
action  arise  out  of  the  same  transaction,  it  is  not  necessar}'  that 
they  should  also  be  connected  with  the  same  subject  of  action. 
There  are  two  alternatives :  first,  the  causes  of  action  must  arise 
out  of  the  same  transaction,  that  is,  one  transaction;  or,  secondly, 
they  must  arise  out  of  transactions  which  are  themselves  con- 
nected with  the  same  subject  of  action.  When  it  was  conceded 
by  the  learned  judge  that  the  two  causes  of  action  in  this  case 
arose  out  of  the  same  transaction,  namely,  the  bargain  for  the  sale 
of  the  horse,  he  had  no  room  for  further  argument;  the  case  was 
practically  decided.  The  real  question  was,  whether  they  did  in 
fact  arise  out  of  the  same  transaction  ;  whether  the  negotiation 
preceding  the  sale  ivas  the  "  transaction  "  -vvithin  the  legal  mean- 
ing of  the  provision.  The  rule  laid  down  at  the  end  of  the  cita- 
tion affords  no  help  in  solving  the  difficulty,  if  indeed  it  has  any 
meaning  whatever. 

§  468.  In  a  case  where  the  defendants  —  common  carriers  — 


1  Sweet  V.  Ingerson,  12  How.  Pr.  331,  stood  that  a  vendor  cannot  enter  into  a 

per  Bacon  J.     What  inconsistency  exists  contract  of  warranty,  and  also  make  false 

between   these    two    causes   of    action  ?  representations  at  tlie  same  sale,  and  in 

Does  the  learned  judge  mean  to  be  under-  the  same  language  ? 


502  CIVIL   REMEDIES. 

had  carried  a  quantity  of  wheat  of  the  plaintiff  on  their  boats 
from  Buffalo  to  New  York,  the  complaint  separately  stated  two 
causes  of  action.  The  first  alleged  a  wrongful  conversion  of  340 
bushels  of  wheat,  and  demanded  judgment  for  their  value,  as 
damages  ;  the  second  alleged  an  overpayment  of  freight  on  the 
shipment  to  the  amount  of  -1170,  and  demanded  judgment  for 
that  sum.  In  passing  upon  the  question  raised  by  the  defendants' 
demurrer,  the  court  said :  "  It  must  be  admitted  that  the  first 
cause  of  action  is  for  a  tort,  and  that  the  second  is  on  an  implied 
contract  to  recover  back  money  paid  by  plaintiffs  under  a  mistake 
of  facts.  But  the  counsel  for  the  plaintiffs  insists  that  both 
causes  of  action  arise  out  of  the  same  subject  of  action,  viz.,  the 
transportation  of  wheat  from  Buffalo  to  New  York,  or  arise  out 
of  transactions  connected  with  that  subject  of  the  action,  and 
are  therefore  joined  under  the  first  subdivision  of  §  167  of  the 
code.  Cases  throw  but  little  light  on  the  unmeaning  generality 
of  the  first  subdivision  of  this  section.  Now,  I  do  not  think  the 
transportation  of  the  wheat  to  New  York  is  the  subject  of  the 
plaintiffs'  action.  The  plaintiffs  have  two  causes  of  action.  The 
subject  of  the  first  would  be  the  loss,  waste,  or  wrongful  conver- 
sion, of  the  340  bushels  of  wheat  by  the  defendants,  and  their 
wrongful  neglect  or  act  by  which  the  plaintiffs  lost  their  prop- 
erty. The  subject  of  the  second  cause  of  action  would  appear  to 
be  the  -9170  of  the  plaintiffs'  money,  which  the  plaintiffs  overpaid 
to  the  defendants  on  account  of  freight,  and  which  the  defend- 
ants ought  to  have  paid  back  to  the  plaintiffs.  But  have  both 
these  causes  of  action,  or  subjects  of  action,  arisen  out  of  the  same 
transaction,  within  the  meaning  of  this  provision  of  the  code  ?  I 
do  not  want  to  nullify  the  code,  and  I  have  no  right  to  nullify  it ; 
and  this  provision  has,  or  was  intended  to  have,  some  meaning. 
Why,  then,  should  I  not  say  that  the  transaction  in  this  case,  out 
of  which  have  arisen  the  plaintiffs'  two  causes  of  action,  and  sub- 
jects of  action,  commenced  with  the  shipment  of  wheat  at  Buffalo, 
and  has  not  ended  j^et,  even  by  the  commencement  of  this  action  ; 
the  plaintiffs'  two  causes  of  action  being  links  in  the  chain  of 
facts  containing  the  transaction,  and  thus  arising  out  of,  or  con- 
nected with,  the  same  transaction  ?  B}^  the  '  subject  of  action' 
in  this  section  of  the  code  must  be  intended,  not  the  subjects  of 
the  different  counts,  or  of  the  several  causes  of  action,  but  of  the 
action  as  a   unit.     To  say  that  by  the  '  subject    of  action  '  is 


JOINDER   OF   CAUSES   OF   ACTION.  503 

meant  the  several  causes  of  action  nullifies  this  provision  of  the 
code.  To  give  force  and  effect  to  it,  it  appears  to  me  you  must 
say  that  it  means  that  the  plaintiff  can  unite  several  causes  of 
action  against  the  same  party,  arising  out  of  the  same  transaction, 
and  nothing  more  ;  and  you  must  treat  the  concluding  words, '  or 
transactions  connected,  with  the  same  subject  of  action,'  as  use- 
less and  unmeaning  surplusage.  Upon  the  whole,  I  have  come 
to  the  conclusion  that  the  plaintiff  had  a  right  to  unite  the  two 
causes  of  action  in  this  complaint ;  but  I  have  done  so,  knowing 
that  no  reasoning  on  this  point  can  have  much  logical  precision, 
or  lead  to  a  satisfactory  result."  ^ 

§  469.  This  opinion,  which  I  have  quoted  in  full,  is  one  of  the 
most  elaborate  attempts  to  be  found  in  the  reports  at  an  analysis 
and  definition  of  these  terms.  Some  observations  upon  it  are 
appropriate  here,  before  passing  to  the  other  citations.  It  is  plain 
that  the  learned  judge  labored  under  a  hopeless  confusion,  both 
in  respect  to  his  notions  of  the  meaning  of  the  important  terms, 
and  in  respect  to  his  reading  of  the  clause  itself.  He  is  com- 
pletely afloat  as  to  the  legal  import  of  "subject  of  action,"  con- 
stantly treating  it  interchangeably  with  "  transaction,"  and,  not- 
withstanding his  disclaimer,  confounding  it  with  "  cause  of 
action."  Why,  in  the  one  case,  is  the  "  subject  of  action  "  de- 
clared to  be  the  conversion  of  the  wheat,  the  wrongful  act  or 
neglect  by  which  the  wheat  was  lost  to  the  plaintiff,  —  that  is,  the 
very  delict  committed  by  the  defendant,  and  in  the  other  case 
declared  to  be  the  moneij^  —  the  very  physical  thing  which  the 
plaintiffs  had  mistakenly  paid  to  the  defendants,  and  which  the 
defendants  were  under  an  implied  contract  to  repay  ?  It  is  self- 
evident  that,  if  by  the  term  "  subject  of  action  "  is  meant  the 
delict  or  wrong  by  which  the  plaintiffs'  primary  right  of  property 
in  their  wheat  was  invaded,  it  must  also  mean  the  wrong  in  the 
other  case,  —  that  is,  the  breach  of  the  implied  contract  to  repay 
the  money ;  and  if  it  denotes,  in  the  one  instance,  the  money 
which  is  the  subject  of  the  plaintiffs'  claim,  it  must  denote  the 
same  in  the  other.  But  the  great  error  of  the  learned  judge  con- 
sists in  his  mistaken  reading  of  the  statute.  The  view  of  the 
plaintiffs'  counsel,  which  he  repudiates,  was  certainly  simple  and 
intelligible.     That  view  regarded  both  causes  of  action  as  arising 

1  Adams  v.  Bissell,  28  Barb.  382,  385,  per  Sutherland  J. 


504  CIVIL   REMEDIES. 

out  of  one  and  the  same  transaction,  —  the  transport  of  the  grain, 
Avith  all  of  its  incidents.  After  rejecting  it,  the  judge,  in  fact, 
returns  to  this  theory  at  last,  and  rests  his  decision  upon  it.  In 
liis  discussion,  however,  he  reverses  the  order  of  the  statute  ;  he 
treats  it  as  though  it  required  the  "  subjects  of  action  "  to  be  con- 
nected with  one  "  transaction,"  instead  of  prescribing  that  the 
"  transactions  "  should  be  connected  with  the  same  "  subject 
of  action  ; "  and,  finding  that  this  construction  leads  him  into 
difficulties  from  which  there  is  no  escape,  he  finally  pronounces 
the  important  clause  of  the  section  useless  surplusage,  to  be 
entirely  rejected.  I  need  hardly  say  that  courts  have  no  author- 
ity to  reject  any  portion  of  a  statute,  unless  it  be  absolutely 
meaningless.  This  clause  is  certainly  not  thus  without  meaning. 
Causes  of  action  may  aiise  from  the  same  transaction,  and  they 
may  arise  from  transactions  which  are  connected  with  the  same 
subject  of  action,  —  that  is,  which  have  a  common  point  of  con- 
nection with  which  they  are  all  united,  and  which  common  point 
is  the  subject  of  the  action.  This,  I  say,  is  far  from  meaningless  ; 
on  the  contrary,  it  is  a  simple  and  plain  expression,  as  far  as  the 
language  is  concerned,  when  that  language  is  used  in  its  ordinary 
and  popular  signification.  The  difficulty,  and  the  only  difficulty, 
springs  from  the  question,  whether  the  words  are  thus  used  in 
their  proper  sense,  or  whether  they  must  receive  a  special  and 
technical  legal  interpretation  in  order  to  arrive  at  the  legislative 
intent,  and  to  frame  from  them  a  definite  rule  which  shall  be  ap- 
plicable to  all  possible  cases.  It  is  an  abuse  of  judicial  power  to 
■I'cject  an  express  provision  of  a  statute  on  the  sole  ground  of  a 
difficulty  in  understanding  and  enforcing  it. 

§  470.  In  an  action  by  a  judgment  creditor  against  his  debtor 
and  an  assignee  of  such  debtor  to  set  aside  transfers,  to  recover 
I)roperty,  and  for  other  relief,  it  was  said  b}^  the  court:  "  What  is 
the  subject  of  the  action  in  this  case  ?  It  is  the  restitution  of  the 
property  of  the  judgment  debtor,  whom  the  plaintiff  represents. 
To  entitle  himself  to  this  relief,  the  plaintiff  avers  in  his  complaint 
different  transactions  out  of  which  his  right  to  a  restitution  Hows."  ^ 
There  is  here  a  plain  confusion  of  ideas.  The  restitution  of  the 
debtor's  property,  which  is  the  relief  demanded,  is  the  object  of 
the  action.     If  there  is  any  thing  connected  with  this  matter  clear, 

1  Palen  v.  Bushnell,  46  Barb.  24. 


JOINDER   OF    CAUSES    OF   ACTION.  505 

it  is  that  the  authors  of  the  code  used  the  terms  "  subject  of 
action  "  and  "  object  of  the  action  "  to  describe  different  and  dis- 
tinct facts. 

§  471.  The  general  theory  of  pleading  and  of  actions  embodied  in 
the  new  system  was  stated  with  some  fulness  by  the  Supreme  Court 
of  California,  in  an  action  brought  against  a  steamboat  company 
by  a  passenger  to  recover  damages.  The  plaintiff  had  purchased 
a  ticket  from  San  Francisco  to  San  Juan,  being  led  to  believe,  by 
public  advertisements  of  the  defendants,  that  the  vessel  landed  at 
the  latter  place.  She  was  carried  on  to  Panama,  the  boat  not 
stopping  at  San  Juan,  and  was  subjected  to  many  personal  dis- 
comforts and  injuries,  and  also  suffered  consequential  pecuniary 
losses  and  damage.  The  complaint  was  in  the  form  of  an  action 
for  deceit,  rather  than  on  the  contract,  and  contained  allegations 
of  false  and  fraudulent  representations.  In  respect  to  this  com- 
plaint, the  court  pronounced  the  following  opinion :  "  Our  system 
of  pleading  is  formed  upon  the  model  of  the  civil  law,  and  one  of 
its  principal  objects  is  to  discourage  protracted  and  vexatious  liti- 
gation. It  is  the  duty  of  the  courts  to  assist  as  far  as  possible  in 
the  accomplishment  of  this  object,  and  it  should  not  be  frittered 
away  by  the  application  of  rules  which  have  no  legitimate  con- 
nection with  the  system.  The  provisions  for  avoiding  a  multi- 
plicity of  suits  are  to  be  liberally  and  beneficially  construed  ;  and 
we  see  no  reason  why  all  matters  arising  from,  and  constituting 
part  of,  the  same  transaction,  should  not  be  litigated  and  deter- 
mined in  the  same  action.  Causes  of  complaint  differing  in  their 
nature,  and  having  no  connection  with  each  other,  cannot  be 
united  ;  but  the  object  of  this  rule  is  to  prevent  the  confusion 
and  embarrassment  which  would  necessarily  result  from  the  union 
of  diverse  and  incongruous  matters,  and  it  has  no  application  to  a 
case  embracing  a  variety  of  circumstances,  so  connected  as  to 
constitute  but  one  transaction.  .  .  .  Every  action  under  our 
practice  may  be  properly  termed  an  action  on  the  case ;  and  it 
would  seem  that  every  ground  of  relief  which  can  be  regarded  as 
a  part  of  the  case  may  with  propriety  be  included  in  the  action. 

.  .  The  plaintiffs  have  brought  their  suit  upon  the  whole 
case  to  recover  damages,  not  only  for  the  breach  of  the  contract, 
but  for  the  wrongs  and  injuries  committed  by  the  owners  and 
aorents  of  the  defendants  in  that  connection.  The  defendants  are 
liable  for  all  the  damages  resulting  from  these  causes ;  and  there 


506  CIVIL   REMEDIES. 

is  certainly  no  impropriety  in  adjusting  the  whole  matter  in  one 
controversy."  ^  The  section  found  in  all  the  codes  defining  a 
"  counterclaim  "  contains  the  expressions  "  transaction  "  and 
"  connected  with  the  subject  of  action,"  used  in  the  same  sense 
as  in  the  passage  now  under  consideration.  In  a  few  of  the  de- 
cisions which  have  been  based  upon  that  section,  there  is  some 
approach  towards  a  general  interpretation  of  these  phrases.  The 
cases  are  collected  in  the  succeeding  chapter,  in  the  section 
which  treats  of  the  counterclaim,  and  may  be  consulted  for 
whatever  light  they  throw  upon  the  present  discussion.^ 

§  472.  It  is  plain  that  little  real  help  can  be  obtained  from 
the  foregoing  judicial  explanations,  and  we  must  return  to  the 
very  language  of  the  statute  itself.  This  language  must  be  care- 
fully studied,  and  the  proper  force  and  effect  given  to  all  its 
words.  In  order  that  different  causes  of  action  may  be  united, 
they  must  arise  out  of  a  transaction,  or  out  of  transactions. 
Nothing  is  said  about  their  being  connected  with  or  arising  out 
of  the  same  "subject  of  action."  There  are  two  alternatives 
only  :  First,  these  different  causes  of  action  may  arise  out  of  the 
same  transaction,  —  that  is,  out  of  cme  ;  or,  secondly,  they  may 
arise  out  of  different  transactions  ;  but  in  that  case  these  transac- 
tions must  be  connected  with  the  same  "  subject  of  action."  The 
words  "  arise  out  of  "  are  important  and  emphatic.  They  indicate 
a  sequence  of  cause  and  effect,  so  that  the  causes  of  action  must 
result  as  consequences  from,  or  be  produced  by,  the  transactions. 
It  is  plain  that  there  must  be  a  close  connection  between  the 
transaction,  as  the  origin,  and  the  causes  of  action,  as  the  prod- 
ucts. 

§  473.  "  Transaction  "  is  defined  by  Worcester  as  "  the  act  of 
transacting  or  conducting  any  business  ;  negotiation ;  manage- 
ment ;  a  proceeding."  We  must  recur  to  the  definition  of  cause 
of  action  already  given.  It  includes  the  plaintiff 's  primary  right 
which  has  been  invaded,  and  the  wrongful  act  or  default  —  the 
delict  —  of  the  defendant  by  which  the  right  is  broken.  In  order 
that  causes  of  action  may  arise  out  of  a  transaction,  there  must, 
therefore,  be  a  negotiation,  or  a  proceeding,  or  a  conduct  of  busi- 
ness, between  the  parties,  of  such  anature  that  it  produces,  as 


1  Jones  V.  Steamboat  Cortes,  17  Cal.  487,  497,  per  Cole  J. 

2  See  Chap.  IV.  sect.  6. 


JOINDER   OP   CAUSES   OF   ACTION.  507 

necessary  results,  two  or  more  different  primary  rights  in  favor  of 
the  plaintiff,  and  wrongs  done  by  the  defendant  which  are  viola- 
tions of  such  rights.  The  proceeding,  or  negotiation,  or  conduct 
of  business,  must,  of  course,  be  a  unit,  one  affair,  or  else  it  would 
not  be  a  single  transaction  ;  and  yet  it  must  be  in  its  nature  com- 
plex, for  it  must  be  the  origin  of  two  or  more  separate  primary 
rights,  and  of  the  wrongs  which  violate  them.  In  order  that  this 
ma}'"  be  so,  the  facts  from  which  the  different  primary  rights  flow 
must  he  parts  of,  or  steps  in,  the  transaction ;  and,  for  the  same 
reason,  the  wrongful  acts  or  omissions  of  the  defendant  must  be 
parts  of  the  same  transaction.  If  a  single  transaction  —  that  is, 
a  single,  continuous,  and  complex  proceeding,  or  negotiation,  be- 
tween the  parties  —  is  analyzed  and  reduced  into  its  series  of  acts 
and  defaults,  and  some  of  these  acts  are  the  facts  from  which 
spring  one  primary  right  in  favor  of  the  plaintiff,  and  other  acts 
are  the  facts  from  which  spring  a  different  primary  right  in  his 
favor,  and  others  still  are  the  violations  or  breaches  of  these 
rights,  these  two  causes  of  action  do  trul}^  arise  out  of  the  same 
transaction. 

§  474.  It  is  clear  that  every  event  affecting  two  persons  is  not 
necessarily  a  "  transaction  "  within  the  meaning  of  the  statute  ; 
indeed,  the  word  as  used  in  common  speech  has  no  such  signifi- 
cation. "Transaction"  implies  mutuality,  something  done  by 
both  in  concert,  in  which  each  takes  some  part.  Much  less  can 
it  be  said,  that,  because  two  events  occur  to  the  same  persons  at 
the  same  time,  they  are  necessarily  so  connected  as  to  become 
one  transaction.  The  case  cited  above,  in  which  a  cause  of  action 
for  an  assault  and  battery  and  one  for  a  slander  Avere  united, 
illustrates  this  statement.  Two  events  happened  simultaneously, 
the  beating  and  the  defamation,  but  neither'was  a  "  transaction  " 
in  any  proper  sense  of  the  word.  'The  wrong  which  formed  a 
part  of  one  cause  of  action  was  the  beating  ;  that  which  formed 
a  part  of  the  other  M'as  the  malicious  speaking.  The  plaintiff's 
primary  rights  which  previously  existed  were  broken  by  two 
independent  and  different  wrongs.  The  only  common  point  be- 
tween the  causes  of  action  was  one  of  time  ;  but  this  unity  of 
time  was  certainly  not  a  "  transaction."  Much  of  the  difficulty 
in  construing  this  language  has  resulted,  I  think,  from  a  failure 
to  apprehend  the  true  nature  of  a  "  cause  of  action,"  from  a  for- 
getfulness  that  it  includes  two  factors,  —  the  primary  right  and 


608  CIVIL   REMEDIES. 

the  wrong  which  invades  it.  A  "  cause  of  action  "  cannot  be 
said  to  "arise  out  of"  an  event  when  the  event  produces  or  con- 
tains but  one  of  these  factors,  — the  delict  or  wrongful  act. 

§  475.  The  same  analysis  applies  also  to  the  remaining  portion 
of  the  clause,  the  sole  difference  being  that  the  causes  of  action 
arise  out  of  different  transactions  instead  of  one.  The  common 
tie  between  the  causes  of  action  in  that  case  is,  that  the  transac- 
tions themselves  are  connected  with  the  same  "  subject  of  action." 
"What  is  meant  by  this  term  ?  It  cannot  be  synonymous  with 
"  cause  of  action,"  This  appears  from  making  the  substitution, 
since  the  result  would  b§,  "  causes  of  action  may  be  united  when 
they  arise  out  of  transactions  connected  with  the  same  cause  of 
action  ; "  which  is  an  absurdity,  a  mere  statement  in  a  circle. 
"  Subject  of  action  "  must,  therefore,  be  something  different  from 
"  cause  of  action."  It  is  also  different  from  "  object  of  the  ac- 
tion." The  object  of  the  action  is  the  thing  sought  to  be  attained 
by  the  action,  the  remedy  demanded  and  finally  awarded  to  the 
plaintiff.  Causes  of  action  cannot  arise  out  of  transactions  con- 
nected with  the  "  object  of  the  action,"  because  that  object  is 
something  in  the  future,  and  could  have  had  no  being  when  the 
transactions  took  place  out  of  which  the  causes  of  action  arose. 
As  the  causes  of  action  arise  out  of  certain  transactions,  and  as 
these  transactions  are  connected  with  a  "  subject  of  action,"  it  is 
plain  that  this  subject  must  be  in  existence  simultaneously  with 
the  transactions  themselves,  and  prior  to  the  time  wlien  the  causes 
of  action  commence.  This  fact  also  shows  that  the  "  subject " 
must  be  something  other  than  the  cause  of  action.  The  phrase 
was  not  used  in  legal  terminology  prior  to  the  code,  but  another 
one  very  similar  to  it  was  in  constant  use,  and  had  acquired  a  well- 
defined  meaning  ;  namely,  "  subject-matter  of  the  action."  Thus 
the  rule  is  familiar,  that  courts  must  have  jurisdiction  of  "  the  sub- 
ject-matter of  the  action,"  as  well  as  over  the  parties.  Courts 
might  have  the  power  in  a  proper  case  to  grant  any  kind  of  relief, 
legal  or  equitable,  and  to  entertain  any  form  of  proceeding,  and 
yet  not  have  jurisdiction  over  some  particular  "  subject-matter." 
The  term  "  subject  of  action,"  found  in  the  code  in  this  and  one 
or  two  other  sections,  was  doubtless  emplo3'ed  by  its  authors  and 
the  legislature  as  synonymous  with,  or  rather  in  the  place  of, 
"  subject-matter  of  the  action."  I  can  conceive  of  no  other  inter- 
pretation which  will  apply  to  the  phrase  and  meet  all  the  require- 


JOINDER   OF   CAUSES    OP    ACTION.  509 

ments  of  the  context.  "  Subject-matter  of  the  action  "  is  not  the 
"  cause  of  action,"  nor  the  "  object  of  the  action."  It  rather  de- 
scribes the  physical  facts,  the  things  real  or  personal,  the  money, 
lands,  chattels,  and  the  like,  in  relation  to  which  the  suit  is  prose- 
cuted. It  is  possible,  therefore,  that  several  different  "  transac- 
tions "  should  have  a  connection  with  this  "  subject-matter,"  or, 
what  seems  to  me  to  be  the  same  thing,  with  this  "  subject  of 
action."  The  whole  passage  is,  at  best,  a  difficult  one  to  construe 
in  such  a  manner  that  any  explicit  and  definite  rule  can  be  ex- 
tracted from  it.  I  remark,  in  bringing  this  analysis  of  the  lan- 
guage to  a  close,  that  the  latter  clause  of  the  subdivision  —  "  or 
transactions  connected  with  the  same  subject  of  action" — can 
probably  have  no  application  to  legal  causes  of  action,  and  can 
only  be  resorted  to  in  practice  as  describing  some  equitable  suits 
which  involve  extremely  complicated  matters.  In  fact,  Mr. 
Justice  Comstock's  position  is  doubtless  correct,  that  the  entire 
subdivision  finds  its  primary  and  by  far  most  important  applica- 
tion to  equitable  rather  thail  to  legal  proceedings. 

§  476.  Although  the  courts  have  generally  refrained  from  any 
discussion  of  this  clause,  they  have  had  frequent  occasion  to  in- 
voke its  aid ;  and  the  following  cases  will  furnish  some  examples 
of  judicial  decisions  based  upon  it.  Tiie  causes  of  action  united 
in  the  same  complaint  or  petition  were  held  to  have  arisen  out  of 
the  same  transaction,  where  one  was  for  the  recovery  of  the  pos- 
session of  land,  and  the  other  was  for  the  value  of  its  occupation 
by  the  defendant;^  for  an  accounting  and  payment  of  the  balance 
found  due,  and  for  the  surrender  up  of  securities  ;  ^  for  injuries 
to  the  person  and  for  those  to  the  property  of  a  passenger,  com- 
mitted by  the  wrongful  acts  and  frauds  of  a  steamboat  company 
on  the  same  voyage  ;  ^  where  the  owner  of  stereotype  plates  of  a 
book  alleged  a  breach  of  defendant's  contract  to  furnish  paper 
and  print  a  book  therefrom,  and  also  injuries  negligentl}^  done  to 
the  plates  themselves  while  in  the  defendant's  possession  ;  *  de- 
taining the  plaintiff's  chattels,  and  wrongfully  and  negligently 
injuring  them  while  thus  detained  ;°  an  action  by  a  judgment 
creditor  against  his  debtor  and  another  to  recover  back  money 

1  Armsti-on^  v.   Hinds,  8  Minn.  254.  487,  497.     See,   however,    Grant  v.  Mc- 
See  Lamed  v.  Hudson,  57  N.  Y.  151.  Carty,  38  Iowa,  468. 

2  Montgomery  v.   McEwen,   7  Minn.         4  Badger  v.  Benedict,  4  Abb.  Pr.  176. 
351.  5  Smith  v.  Orser,  43  Barb.  187. 

3  Jones  V.  Steamboat  Cortes,  17  Cal. 


510  CIVIL   REMEDIES. 

wrongfully  paid  as  usury  to  such  person  by  the  debtor,  to  compel 
this  assignee  to  account  for  actual  securities  placed  in  his  hands 
by  the  debtor,  and  to  set  aside  certain  transfers  of  personal  prop- 
erty made  by  the  debtor  ;  i  an  action  in  which  the  plaintiff  sought 
to  recover  the  agreed  price  in  a  contract  for  building  a  house, 
damages  caused  by  the  defendant's  delay  to  have  the  premises 
ready  in  time  for  the  work  to  go  on,  and  the  price  of  extra  work 
and  materials,  and  finally  to  set  aside,  on  the  ground  of  fraud 
an  award  made  in  reference  to  certain  of  the  matters  in  dispute  ;  ^ 
an  action  to  recover  damages  for  the  conversion  of  goods  by  the 
defendant,  a  common  carrier,  and  to  recover  back  money  mis- 
takenly paid  as  freight  for  the  same  goods  ;  ^  where  lands  incum- 
bered by  an  outstanding  mortgage  had  been  conveyed  by  a 
warranty  deed,  and  the  grantee  therein  brought  an  action  against 
the  grantor  and  the  holder  of  the  mortgage,  and  prayed  a  judg- 
ment fixing  the  amount  due  upon  the  mortgage,  if  any,  and 
directing  the  same  to  be  delivered  up  and  cancelled  upon  pa3'ment 
by  the  plaintiff  of  the  amount  so  ascertained,  and  ordering  the 
grantor  thereupon  to  repay  that  sum  to  the  plaintiff;*  action 
against  a  constable  and  the  sureties  upon  his  official  bond,  alleg- 
ing the  issue  of  an  execution  to  such  officer  and  a  levy  by  him 
upon  property  of  the  judgment  debtor  sufficient  to  have  made 
the  amount  due,  a  neglect  to  return  the  execution,  the  receipt 
and  collection  of  the  money,  and  refusal  or  neglect  to  pay  over 
the  same  to  the  plaintiff;  ^  where  the  plaintiff  alleged  that  he  had 
placed  $100  in  the  defendant's  hands  for  the  purpose  of  entering 
an  eighty-acre  lot  in  the  plaintiff's  name,  at  the  expected  price 
of  '551.25  per  acre  ;  that  the  defendant  thereupon  entered  the  lot  in 
his  own  name,  but  paid  therefor  only  $10,  and  converted  the 
residue  of  the  money  to  his  own  use ;  and  demanded  judgment 
for  the  $00  and  interest,  and  also  for  a  conveyance  of  the  land  to 
himself;^  an  action  to  recover  a  specified  sum  due  upon  a  written 
contract,  and  damages  for  the  breach  of  certain  covenants  in  the 
same  instrument,  and  also  to  compel  the  specific  performance  of 

1  Palen  v.  Buslinell,  46  Barb.  24.  It  action  all  arose  out  of  the  same  transac- 
might,  perliaps,  have  been  better  to  say  tion,  yet,  upon  the  principles  already 
that  there  was  but  one  cause  of  action.  stated  in  the  text,  there  was  actually'  but 

2  See  V.  Partridge,  2  Duer,  463.  one  cause  of  action. 

3  Adams  v.  Eissell,  28  Barb.  382,  385.  &  Moore  i-.  Smith,  10  How.  Pr.  361. 

*  Wanille  r.  Turney,  5  Duer,  661.  Al-  *>  Callaghau  v.  McMahau,  30  Mo.  111. 
though   Boswortli  J.  says  the  causes  of 


JOINDER   OF   CAUSES   OF   ACTION.  511 

a  covenant  to  convey  land  contained  therein  ;  ^  where  one  cause 
of  action  was  for  the  defendant's  deceit  practised  in  the  sale  of 
oil  leases  to  the  plaintiff,  and  the  other  was  for  money  had  and 
received,  being  the  price  paid  by  the  plaintiff  in  the  same  sales.^ 
The  owner  in  fee  of  land  having  been  induced  by  the  defendant's 
fraud  to  convey  the  same  by  a  deed  in  which  the  wife  joined,  the 
grantor  and  his  wife  brought  a  joint  action  to  recover  damages 
for  the  deceit.  The  New  York  Court  of  Appeals  held  that  the 
husband  had  a  cause  of  action  for  the  loss  of  the  land  which  he 
owned  in  fee  ;  that  the  wife  had  a  cause  of  action  for  the  loss  of 
her  inchoate  dower  right ;  that  they  could  recover  one  joint  judg- 
ment as  a  satisfaction  for  both  claims  ;  and,  finally,  that  the  two 
causes  of  action  were  properly  united,  since  they  arose  out  of  the 
same  transaction,  —  namely,  the  bargaining  and  sale  of  the  prem- 
ises and  the  fraudulent  rei^resentations  made  therein  by  the  de- 
fendant.^ Several  of  the  cases  cited  in  the  last  preceding  sub- 
division of  this  section  might  perhaps  be  regarded  as  instances  of 
causes  of  action  arising  out  of  the  same  transaction;  they  cer- 
tainly would  be  so  if  they  were  to  be  considered  as  embracing 
more  than  one  cause  of  action."^ 

§  477.  The  following  are  examples  of  causes  of  action  con- 
tained in  the  same  complaint  or  petition  which  have  been  held 
not  to  arise  out  of  the  same  transaction :  for  an  assault  and  bat- 
tery and  for  a  slander,  although  committed  simultaneously  ;  °  for 

1  Gray  v.  Dougherty,  25  Cal.  266.  judgment  for  one  sura  as  damages  in  sat- 

2  Woodbury  v.  Delap,  1  N.  Y.  S.  C.  isfaction  of  both  demands,  although  the 
20;  s.  c.  65  Barb.  501.  The  first  count  case  is  expressly  based  upon  the  doctrine 
set  out  the  sale  and  the  deceit  and  the  that  there  were  separate  and  distinct 
damages  ;  the  others,  for  money  had  and  causes  of  action.  Assuming  that  the 
received,  alleged  that  the  money  had  been  court  was  correct  in  this  position,  they 
had  and  received  by  the  defendant  "  as  plainly  both  arose  out  of  the  same  trans- 
above  stated."     This,  it  was  held,  incor-  action. 

porated  into  the  latter  counts  the  aver-  *  See  supra,  §§  4-59,  460,  and  especially 

mentsof  the  former,  and  showed  that  all  Bidwell  v.  Astor  Ins.   Co.,  16  N.  Y.  263; 

arose  out  of  the  same  transaction.  Phillips  v.  Gorham,  17  N.  Y.  270;    Laub 

3  Simar  v.  Canaday,  53  N.  Y.  298,305,  v.  Buckmiller,  17  N.  Y.  620;  N.  Y.  Ice 
per  Folger  J.  The  complaint  was  not  Co.  v.  N.  W.  Ins.  Co.,  23  N.  Y.  357 ; 
framed  at  all  upon  the  theory  which  the  Lattin  v.  McCarty,  41  N.  Y.  107  ;  Howe 
court  adopted  in  making  this  decision.  It  v.  Peckham,  10  Barb.  656 ;  Blake  v.  Van 
did  not  purport  to  set  forth  two  separate  Tilborg,  21  Wise.  672 ;  Fish  v.  Berkey, 
causes  of  action  ;  it  was  a  joint  complaint,  10  Minn.  199. 

and  alleged  a  joint  cause  of  action  in  favor  5  Anderson  v.  Hill,  53  Barb.  238,  245 ; 

of  the  plaintiifs,  and  demanded  a  single  Dragoo  v.  Levi,  2  Duv.  (Ky.)  520.     But, 

joint  judgment.     The  peculiar  feature  of  ]m-  contra,  see  Harris  ?;.  Avery,  5  Kans. 

the  decision  is  that  which  sustains  a  single  146  ;  Brewer  v.  Temple,  15  How.  Pr.  286. 


512  CIVIL   REMEDIES. 

a  breach  of  a  warranty  of  soundness  given  on  the  sale  of  a  horse, 
and  for  fraudnlent  representations  as  to  the  soundness  made  at 
the  same  sale  ;  ^  a  claim  b}'  the  plaintiffs  as  next  of  kin  and  lega- 
tees of  A.,  two  of  the  defendants  being  A.'s  executors,  and  a  claim 
by  them  as  legatees  of  B.,  one  of  the  defendants  being  B.'s  ex- 
ecutor, the  action  being  for  an  account  and  settlement  of  both 
estates.2 

§  478.  When  the  plaintiff  unites  two  causes  of  action  which 
can  only  be  joined  because  they  arise  out  of  the  same  transac- 
tion, or  out  of  transactions  connected  with  the  same  subject  of 
action,  the  facts  showing  such  common  origin  or  connection  must 
be  averred,  so  that  the  court  may  see  whether  the  joinder  is 
proper.  A  mere  general  allegation  that  the  causes  of  action  all 
arose  out  of  the  same  transaction,  is  of  no  avail,  and  would  be 
surplusage.^ 

V.  Instances  in  which  the  proper  Joinder  of  Causes  of  Action  is 
connected  with  the  proper  Joinder  of  Defendants  ;  Discus- 
sion  of  the  provision  that  all  the  Causes  of  Action  must 
affect  all  of  the  parties. 

§  479.  Questions  relating  to  the  uniting  of  causes  of  action 
may  be  presented  in  two  forms  :  In  whatever  one  of  the  enumer- 
ated classes  they  fall  they  may  (1)  be  against  the  single  defend- 
ant, or  the  several  defendants  all  equally  liable,  —  perhaps  jointly 
liable,  —  in  which  case  the  inquiry  has  to  do  solely  with  the 
joinder  of  the  causes  of  action  themselves,  and  is  not  concerned 
with  the  joinder  of  the  defendants  ;  or  (2)  they  may  be  against 
several  defendants  unequally  and  differently  liable,  one  cause  of 
action  affecting  a  portion  of  the  defendants  more  directly  and 

1  Sweet  V.  Ingerson,  12  How.  Pr.  331.  identical  with  the  one  given  in  the  text. 
In  accordance  with  tlie  principles  main-  Altliotigh  the  language  used  by  the  court 
tained  in  the  text,  the  two  causes  of  action  is  only  a  dictum,  it  is  a  strong  expression 
in  this  case  clearly  arose  out  of  the  same  of  opinion  that  no  causes  of  action  can  be 
transaction ;  indeed,  a  more  illustrative  united  by  reason  of  that  particular  pro- 
example  could  hardly  be  found  among  vision  unless  they  are  embraced  within 
purely  lefial  actions.  some  of  the  other  classes  mentioned  by 

2  Viail  I'.  Mott,  37  Barb.  208.  The  the  section.  See  N.  C.  Land  Co.  v. 
Supreme   Court  of  North   Carolina,  in  a  Beatty,  69  N.  C.  329,  334. 

very  recent  case,  seems  to  deny  any  opera-         3  Fiynn  v.  Bailey,  50  Barb.  73.     See 

five  force  whatsoever  to  the  first  clause  Woodbury  v.  Delap,  1  N.  Y.  S.  C.  20;  65 

of  the  section  under  consideration,  which,  Barb.  501. 
as  it  occurs  in  the  code  of  that  State,  is 


JOINDER    OP    CAUSES    OP    ACTION.  513 

substantiaHy  than  it  does  others.  In  such  case  the  inquiry  has 
to  do  with  the  joinder  of  the  defendants  as  well  as  with  the  union 
of  the  causes  of  action.  I  shall,  in  the  present  subdivision,  ex- 
amine the  latter  of  these  cases.  It  is  required  by  all  the  codes  as 
a  prerequisite  to  the  uniting'  of  different  causes  of  action,  that, 
notwithstanding  they  may  all  belong  to  the  same  class,  they  must 
affect  all  the  parties  to  the  action.  The  only  exception  men- 
tioned in  any  statute  is  the  action  to  foreclose  a  mortgage.^ 

§  480.  While  the  causes  of  action  thus  united  must  affect  all  of 
the  parties,  it  is  not  necessary  that  they  should  affect  them  all 
equally  or  in  the  same  manner.^  If  equality  and  uniformity  were 
required,  a  large  part  of  the  equity  jurisdiction  would  be  swept 
away  at  one  blow  ;  for  it  is  the  distinguishing  feature  of  that  sys- 
tem that  all  persons  having  any  interest  in  tlie  subject-matter  of 
the  controversy  or  in  the  relief  granted  should  be  made  parties, 
however  various  and  unequal  their  interests  may  be.  Indeed, 
equality  of  right  or  of  liability  was  not  essential  in  all  connnon- 
law  actions.  It  was  only  when  the  proceeding  was  in  form  joint 
that  this  equality  was  indispensable  according  to  legal  concep- 
tions. The  provision  of  the  codes  has  not  changed  any  of  these 
former  doctrines  ;  it  simply  enacts  in  one  statutory  and  compre- 
hensive form  the  principle  which  controlled  the  courts,  both  of 
law  and  equity,  under  the  former  practice.  It  leaves  an  equita- 
ble action  to  be  governed  by  the  same  rules  as  to  parties  which 
controlled  it  when  equity  was  a  distinct  department,  and  it 
extends  the  theory  at  least  to  legal  actions  as  well.  The  practical 
effect  of  this  clause  in  the  statute  will  be  best  learned  from  an 
examination  of  the  cases  in  which  it  has  been  applied,  and  from  the 
judicial  construction  which  has  been  thereby  put  upon  it.  Those 
which  are  quoted  first  in  order  pronounce  against  the  propriety 
of  the  union  made  by  the  plaintiff,  because  the  causes  of  action 
did  not  affect  all  the  parties. 

§  481.  The  owner  of  a  tract  of  land  had  made  O.  his  agent  for 
the  purpose  of  selling  it,  and  O.  had  sold  the  land  to  S.,  who  also 
stood  in  a  fiduciary  relation  to  the  owner,  and  S.  had  conveyed 

1  This  exception,  in  fact,  confounds  such  suit  tliere  is  only  one  cause  of  action, 
"  relief"  with  "  cause  of  action."  It  sini-  unless  a  common-law  action  on  the  note 
ply  permits  defendants  to  be  joined  against  or  bond  is  combined  with  the  foreclosure, 
whom  some  special  relief  is  demanded,  and  ^  Vermeule  v.  Beck,  15  How.  Pr.  333. 

is  therefore  entirely  unnecessary.  In  every 

33 


614  CIVIL   REMEDIES. 

portions  of  the  land  to  different  purchasers.  The  original  owner 
thereupon  brought  an  action  against  O.  and  S.,  charging  fraud  and 
a  violation  of  their  fiduciary  duty  against  both.  The  complaint 
demanded  a  judgment  of  damages  against  O.  for  his  deceit,  and 
against  S.  an  account  and  payment  of  all  the  proceeds  and  profits 
that  he  had  or  might  have  made  from  his  own  sales,  and  a  recon- 
veyance of  the  portion  yet  remaining  unsold.  The  New  York 
Court  of  Appeals  held  that  the  causes  of  action  were  improperly 
united ;  and,  as  its  opinion  is  instractive,  I  quote  from  it  at  some 
length.  "•  The  plaintiff  has  elected  to  regard  S.  as  his  trustee, 
and  the  complaint  as  to  him  and  the  decree  proceed  on  this  basis. 
The  plaintiff  therefore  elects  to  affirm  the  sale  as  to  S.  He  can- 
not uno  flatti  affirm  it  as  to  him,  and  disaffirm  it  as  to  the  defend- 
ant O.  It  is  difficult  to  see  how  under  the  provision  of  §  167  of 
the  code  these  causes  of  action  may  be  united  in  the  same  com- 
plaint. Although  it  may  be  said  that  both  causes  of  action  arise 
out  of  the  same  transaction,  namely,  the  sale  of  the  plaintiff's 
land  to  the  defendant  8.,  yet  the  cause  of  action  against  O.  is  for 
an  injuiy  to  the  plaintiff's  property,  while  that  against  S.  is  a 
claim  against  him  as  a  trustee  by  operation  of  law.  The  causes 
of  action  joined  in  the  complaint  do  not  affect  both  of  the  parties 
defendant.  O.  is  not  affected  by  nor  in  any  way  responsible  for 
S.'s  acts  as  plaintiff's  trustee,  and  the  complaint  does  not  profess 
to  make  him  liable  therefor.  So  S.  is  not  sought  to  be  made 
responsible  for  the  fraudulent  acts  of  O.  On  the  plaintiff's  own 
showing,  he  has  separate  and  distinct  causes  of  action  against  each 
of  the  defendants  which  cannot  be  joined  under  the  code."  ^ 

§  482.  The  same  doctrine  was  asserted  and  ruling  made  in  the 
following  cases,  the  causes  of  action  being  held  improperly  united 
in  each  because  they  did  not  affect  all  of  the  parties :  Where  one 
cause  of  action  was  on  a  judgment  against  the  defendant  and  two 
others,  a  second  on  a  judgment  against  the  defendant  and  one 
other,  while  a  third  was  on  a  judgment  against  the  defendant 
alone  ;^  where  the  first  cause  of  action  was  against  a  husband 
and  wife  for  a  slander  by  the  wife,  and  the  second  against  the 
husband  for  his  own  slander;^  an  action  against  a  husband 
and  wife  on  a  contract  made  by  both  in  the  wife's  business,  where 
a  personal  judgment  was  demanded  against  him,  and  a  judgment 

1  Gardner  v.  Ogdcn,  22  N.  Y.  327,  340,  3  Malone  v.  Stilwell,  15  Abb.  Pr.  421. 
per  Davies  J.  And  see  Dailey  v.  Houston,  58  Mo.  obi, 

•^  Barnes  v.  Smith,  16  Abb.  Vr.  420.         306. 


JOINDER    OF   CAUSES    OF    ACTION.  615 

to  enforce  the  demand  against  the  wife's  separate  estate  ;  ^  where 
the  phiintiff 's  agent,  with  whom  certain  securities  had  been  de- 
posited, had  transferred  them  in  violation  of  his  duty  to  various 
assignees,  and  a  single  action  was  brought  against  him  and  all 
these  transferees  to  set  aside  the  assignments  and  to  recover  the 
bonds  or  their  proceeds;^  an  action  by  a  reversioner  against  the 
tenant  for  life  and  the  occupant  to  recover  damages  for  injuries 
done  by  them  to  the  land,  the  complaint  containing  a  cause  of 
action  against  one  defendant  for  cutting  and  removing  timber,  a 
second  against  both  for  the  same  acts,  and  a  third  against  both  for 
removing  fire-wood  already  cut ;  ^  an  action  for  deceit,  in  which 
one  count  of  the  complaint  alleged  fraudulent  acts  against  a  part 
of  the  defendants,  and  other  counts  charged  similar  acts  against 
all;*  where  damages  were  claimed  from  the  owner  of  a  city  lot 
for  making  an  excavation  in  a  street,  into  which  the  plaintiff  fell, 
and  from  the  city  for  permitting  the  street  to  be  broken  up  ;  ^  an 
action  against  two  defendants  to  recover  damages  for  the  flowing 
of  plaintiff's  lands,  the  complaint  alleging  in  the  first  count  that 
one  defendant  erected  a  dam  in  the  north  branch  of  a  certain 
river,  and  in  the  second  count  that  the  other  defendant  con- 
structed a  dam  in  the  south  branch  of  the  same  stream,  by  the  com- 
bined effects  of  which  obstructions  the  injury  was  done  ;  ^  an  action 
against  two  defendants,  in  which  the  claim  against  one  was  for 
goods  sold  and  delivered,  and  that  against  the  other  was  on  his 
promise  to  pay  the  price  thereof ;  '^  an  action  against  a  public 
officer  and  the  sureties  on  his  official  bond  for  a  breach  thereof, 
the  complaint  containing  also  a  cause  of  action  against  the  officer 
alone  for  damages  caused  by  a  distinct  and  different  negligent 
act;*  a  cause  of  action  against  A.  B.  and  C.  for  money  loaned  to 
them,  and  one  against  A.  D.  and  E.  on  a  note  given  by  them  as 
collateral  security  for  the  same  loan.^ 

1  Palen  v.  Lent,  5  Bosw.  713.  "  Sanders  v.  Clason,  13  Minn.  379.  See 

'^  Lexington,  &c.  R.  R.  v.  Goodman,  15  also  cases  in  regard  to  guarantors,  supra, 

How.  Pr.   85.     Tiiis  was  a  special  term  §  306. 

decision,  and  is  therefore  not  entitled  to  ^  State    v.   Kruttsclinitt,   4  Nev.  178 ; 

much   authority.      The    case   is    clearly  Ghirardelli  v.  Bourland,  32  Cal.  585.    And 

in   principle  identical  with  the  ordinary  against  the  sureties  on  an  administrator's 

creditor's  suit.  bond  for  a  breach  thereof,  and  against  the 

3  Rodgers  v.  Rodgers,  11  Barb.  595.  administrator  himself  for  a  violation  of  his 

*  Wells  V.  Jewett,  11.  How.  Pr.  242.  trust.     Howse  v.  Moody,  14  Fla.  59,  64, 

5  Trowbridge  v.  Forepaugh,  14  Minn.  65. 

133.  9  Farmers'  Bank  v.  Bayliss,  41    Mo. 

e  Lull  V.  Fox  &  Wise.  Imp.   Co.,   19  274.     And  see  Lane  v.  State,  27  Ind.  108. 

Wise.  100,  102. 


516  CIVIL    IIKMEDIES. 

§  483.  The  causes  of  action  iiuist  not  only  affect  all  the  defend- 
ants, but  all  the  plaintiffs  as  well,  the  provision  of  the  codes  ap- 
plying equally  to  both  parties. ^  Thus  an  action  by  three  persons 
having  entirely  distinct  and  separate  claims  against  the  defend- 
ant for  work  and  materials,  brought  to  foreclose  their  individual 
mechanic's  liens  on  their  debtor's  house,  was  held  improper  ;2  and 
where  six  ])ersons,  owners  of  distinct  and  separate  parcels  of  land 
throuoh  which  a  stream  ran,  each  being  entitled  to  the  use  of  the 
water  as  it  passed  through  his  land,  joined  in  a  suit  to  restrain  the 
defendant  from  diverting  the  entire  stream  at  a  point  above  all 
their  premises,  the  Supreme  Court  of  Nevada  condemned  the 
complaint  as  improperly  uniting  the  causes  of  action  and  the 
plaintiffs.^  In  an  action  to  recover  possession  of  land  brought  l)y 
two  plaintiffs,  the  complaint  contained  two  counts :  the  first 
averred  a  title  to  the  premises  in  one  of  the  plaintiffs,  while  the 
second  alleged  a  different  and  even  hostile  title  in  the  other.  A 
demurrer  to  this  complaint  was  sustained,  on  the  ground  that  the 
two  causes  of  action  did  not  affect  both  of  the  plaintiffs.  The 
former  practice  of  naming  different  lessors  of  the  plaintiff  in  eject- 
ment, and  afterwards  of  uniting  different  plaintiffs  who  claim 
under  distinct  and  hostile  titles,  has  been  abolished  by  the  code. 
"  The  action  to  recover  possession  of  land  now  stands  on  the 
same  footing  precisely  in  respect  to  parties  and  the  union  of 
causes  of  action  with  all  other  actions."* 

§  484.  Causes  of  action  to  recover  possession  of  different  chat- 
tels from  different  defendants  cannot  be  joined  in  the  same  suit.^ 
Nor  can  a  cause  of  action  against  a  trustee  to  compel  the  convey- 
ance of  the  trust  property  be  united  with  a  cause  of  action 
against  an  administrator  on  a  demand  growing  out  of  the  same 
property.^     A  cause  of  action  against  an  executor,  administrator, 

1  Wliere  a  husband  and  wife  sued  for  per  T.  A.  Johnson  J. ;  St.  John  v.  Pierce, 
an  assault  and  battery  upon  the  wife,  and  2*2  Barb.  302;  Hubbell  v.  Lerch,  58  N.  Y. 
the  petition  set  forth  a  cU-iim  for  the  in-     237,  241. 

juries   sustained  by  the   wife  for  which  &  Robinson  v.  Eice,  20  Mo.  229. 

both  must  sue,  and  also  a  claim  for  the  •>  McLaughlin  v.  McLaughlin,  16  Mo. 

loss  of  her  services,  for  which  he  alone  242.     The  following  cases  are  additional 

must  sue,  two  causes  of  action  were  held  illustrations  of  tlie  rule  that  the  causes  of 

to  be  improperly  united.     Dailey  y.  IIous-  action  must  atlect  all  the  parties.     Chee- 

ton,  58  Mo.  301,  300.  ly's  Administrator  v.  Weils,  33   Mo.  106; 

2  Harsh  v.  Morgan,  1  Kans.  293,  299.  Liney  v.  Martin,  29  Mo.   28;  Stalcup  v. 

3  Schultz  I'.  Winter,  7  Nev.  130.  For  Garner,  20  Mo.  72.  A  cause  of  action  to 
contrary  cases,  see  supra,  §  209  (n.)  1.  recover  possession  of  one  parcel  of  land 

*  Hubbell  V.  Lercli,  02  Burb.  295,  297,     with  damages  for  withholding  the  same, 


JOINDER   OF   CAUSES   OF   ACTION.  517 

or  trustee,  in  his  represfentative  character,  cannot  be  united  with 
one  against  the  same  individual  personally.  The  doctrine  was 
recently  stated  by  the  New  York  Court  of  Appeals,  as  the  result 
of  an  elaborate  examination  of  the  authorities :  •'  The  following 
principles  are  settled  by  these  authorities :  1.  That,  for  all  causes 
of  action  arising  upon  contract  made  by  deceased  in  his  lifetime, 
an  action  can  be  maintained  against  the  executor  or  administrator 
as  such,  and  the  judgment  would  be  de  bonis  testaforis,  or  intesta- 
toris.  2.  That  in  all  causes  of  action,  where  the  same  arise  upon 
a  contract  made  after  the  death  of  the  testator  or  intestate,  the 
claim  is  against  the  executor  or  administrator  personally,  and  not 
against  the  estate,  and  the  judgment  must  be  de  bonis  propriis. 
3.  That  these  different  causes  of  action  cainiot  be  united  in  the 
same  complaint."  ^ 

§  485.  Under  the  provisions  of  the  Indiana  code  an  action  was 
sustained  against  a  husband  and  wife,  brought  by  a  creditor  of 
the  husband  to  recover  a  judgment  for  the  amount  of  the  demand 
against  him,  and  to  charge  certain  land  held  by  the  wife  under 
an  implied  trust  for  her  husband,  with  a  mechanic's  lien  which 
accompanied  the  demand  ;^  and  also  an  action  against  a  husband 
and  wife,  which  was  brought  to  obtain  a  judgment  against  him 
for  the  price  of  goods  sold  and  delivered,  and  also  to  set  aside  his 
deed  of  land  fraudulently  conveyed  to  her,  so  as  to  let  in  the  lien 
of  the  judgment  when  recovered.^ 

§  486.  The  questions  under  consideration,  in  their  application 
to  equitable  actions,  were  thorouglily  and  al)ly  discussed  by  the 
Supreme  Court  of  California  in  the  case  of  Wilson  v.  Castro,'^  and 

it  has  been  held,  cannot  be  joined  with  a  Tradesman's  Bank  v.  McFeely,  61  Barb, 

similar  cause  of  action  in  respect  to   an-  522,  decided  in  tlie  face  of  Ferrin  v.  My- 

other  parcel,  .sef/ i/M.     Holmes  w.  Williams,  rick.     But  a  claim  against  the  defendant 

16  Minn.  164,  169  ;  nor  can  a  claim  for  a  as  a  stockholder,  to  recover  a  demand  due 

specific  performance  against  A.  be  joined  from  the  corporation,  may  be  joined  with 

with  a  claim  to  recover  possession  of  land  a  claim  against  him  as   a  trustee  of  the 

against  B.,  Fagan  v.  Barnes,  14  Fla.  53,  company  for  the  same  demand,  both  being 

56;  nor  can  a  cause  of  action  for  fraud  based  upon  a  statute.     Wiles  c.  Suydam, 

against  one  defendant  be  united  with  a  6  N.  Y.  S.  C.  292,  citing  Durant  v.  Gard- 

cause  of  action  upon  contract  against  an-  ner,  10  Abb.  Vr.  445;   19   How.   Pr.  94; 

other,  Van  Liew  v.  Johnson,  6  N.  Y.  S.  C.  Sipperly  v.  Troy  &  B.  R.  R.,  9  How.  Pr. 

648;  N.  C.  Land  Co.  v.  Beatty,  69  N.  C.  83 ;  Dickens  v.  N.  Y.  Cent.  R.  R.,  13  How. 

329.  Pr.  228. 

1  Ferrin  v.  Myrick,  41  N.  Y.  315,  319-  -  Lindley  v.  Cross,  31  Ind.  106. 

322,  per  Hunt  C.  J.  ;  Austin  v.  Munro,  47  3  Frank  v.  Kessler,  30  lud.  8. 

N.  Y.  360,  364,  365,  per  Allen  J. ;  Austin  *  Wilson  v.  Castro,  31  Cal.  420. 

V.   Munro,   4  Lans.  67.     See,  per  contra, 


518  CIVIL   REMEDIES. 

I  sliall  close  tliis  subdivision  witli  an  extract  from  the  opinion. 
After  a  statement  of  the  general  rules  and  doctrines  of  ec^uity  in 
relation  to  parties,  the  learned  judge  proceeds  to  discuss  the 
question  as  to  the  joinder  of  causes  of  action  in  connection  with 
the  union  of  the  defendants,  or,  to  adopt  the  nomenclature  used  by 
equity  courts,  the  subject  of"  7nultifarioufiness.'"  "  A  bill  in  equity 
is  said  to  be  '  multifarious'  when  distinct  and  independent  mat- 
ters are  joined  therein,  —  as,  for  example,  the  uniting  of  several 
matters,  perfectly  distinct  and  unconnected,  against  one  defend- 
ant, or  the  demand  of  several  matters  of  a  distinct  and  independ- 
ent nature,  against  several  defendants.  But  the  case  of  each 
particular  defendant  must  be  entirely  distinct  and  independent 
from  that  of  the  other  defendants,  or  the  objection  cannot  prevail ; 
for,  as  said  by  Judge  Story,  '  The  case  of  one  may  be  so  entire 
as  to  be  incapable  of  being  prosecuted  in  several  suits,  and  yet 
some  other  defendant  may  be  a  necessary  party  to  some  portion 
only  of  the  case  stated.  In  the  latter  case  the  objection  of  mul- 
tifariousness could  not  be  allowed  to  prevail.  So  it  is  not  indis- 
pensable that  all  the  parties  should  have  an  interest  in  all  the 
matters  contained  in  the  suit ;  it  will  be  sufficient  if  each  party 
has  an  interest  in  some  matter  in  the  suit,  and  they  are  connected 
with  the  others.' 1  The  same  author  lays  it  down  that  'To  sup- 
port the  objection  of  multifariousness  because  the  bill  contains 
different  causes  of  suit  against  the  same  person,  two  things  must 
concur :  Jiy-st,  the  different  grounds  of  suit  must  be  wholly  dis- 
tinct ;  secondly^  each  ground  must  be  sufficient  as  stated  to  sus- 
tain a  bill ;  if  the  grounds  be  not  entirely  distinct  and  uncon- 
nected, if  they  arise  out  of  one  and  the  same  transaction,  or  series 
of  transactions  forming  one  course  of  dealing,  and  all  tending  to 
one  end,  if  one  connected  story  can  be  told  of  the  whole,  the  ob- 
jection does  not  apply.'  ^  When  the  point  in  issue  is  a  matter  of 
common  interest  among  all  the  parties  to  the  suit,  though  the  in- 
terests of  the  several  defendants  are  otherwise  unconnected,  still 
they  may  be  joined.  In  Salvidge  v.  Hyde,^  Sir  John  Leach  V. 
C.  said :  '  If  the  objects  of  the  suit  are  single,  but  it  happens 
that  different  persons  have  separate  interests  in  distinct  questions 
which  arise  out  of  the  single  object,  it  necessarily  happens  that 
such  different  persons  must  be  brought  before  the  court  in  order 

1  Story's  Eq.  PL,  §§  271,  271a.  »  SalvLdge  v.  Hyde,   5  Madd.  Ch.  R. 

2  lbid.§27U.  138. 


JOINDER    OF    CAUSES    OF    ACTION.  519 

that  the  suit  may  conclude  the  whole  subject.'  In  Boyd  v.  Hoyt,' 
Mr.  Chancellor  Walworth  laid  down  the  same  doctrine  in  sub- 
stantially the  language  used  by  Sir  John  Leach  in  Salvidge  v. 
Hyde ;  and  Mr.  Daniel,  in  his  excellent  work,^  says,  in  refer- 
ence to  the  doctrine  held  in  Salvidge  v.  H3'de,  there  is  no  doubt 
that  the  learned  judge  stated  the  principle  correctly,  though  in 
the  application  of  it  he  went,  in  the  opinion  of  Lord  Eldon,  too 
far.^  In  Whaley  v.  Dawson,'*  Lord  Redesdale  observed  that  in  the 
English  cases,  when  demurrers,  because  the  plaintiff  demanded 
in  his  bill  matters  of  distinct  natures  against  several  defend- 
ants not  connected  in  interest,  have  been  overruled,  there  has 
been  a  general  right  in  the  plaintiff  covering  the  whole  case, 
although  the  rights  of  the  defendants  may  have  been  distinct. 
In  such  cases  the  court  proceeds  on  the  ground  of  preventing 
multiplicity  of  suits,  when  one  general  right  is  claimed  by  the 
plaintiff  against  all  the  defendants  ;  and  so  in  Dimmock  v.  Bix- 
by,^  the  court  held  that  when  one  general  right  is  claimed  by  the 
plaintiff,  although  the  defendants  may  have  separate  and  distinct 
rights,  the  bill  of  complaint  is  not  multifarious.  In  the  elaborate 
case  of  Campbell  v.  Mackay,^  Lord  Cottenham  held  that  when  the 
plaintiffs  have  a  common  interest  against  all  the  defendants  in  a 
suit,  as  to  one  or  more  of  the  questions  raised  by  it,  so  as  to  make 
them  all  necessary  parties  for  the  purpose  of  enforcing  that  com- 
mon interest,  the  circumstance  of  the  defendants  being  subject  to 
distinct  liabilities  in  respect  to  different  branches  of  the  subject- 
matter  will  not  render  the  bill  multifarious.  In  the  same  case 
his  lordship  observed  that  it  was  utterly  impossible  upon  the  au- 
thorities to  lay  down  any  rule  or  abstract  proposition  as  to  what 
constitutes  multifariousness  which  can  be  made  universall}''  ajjpli- 
cable.  The  only  way,  he  said,  of  reconciling  the  authorities  upon 
the  subject,  is  by  adverting  to  the  fact,  that  although  the  books 
speak  generally  of  demurrers  for  multifariousness,  yet  in  truth 
such  demurrers  may  be  divided  into  two  kinds,  one  of  which, 
properly  speaking,  is  on  account  of  a  misjoinder  of  causes  of 
action  ;  that  is  to  say,  uniting  claims  of  so  different  a  character  that 

1  Boyd  V.  Hoyt,  5  Paige.  78.  5  Dimmock  v.  Bixby,  20  Pick.  368. 

2  1  Danieli's  Cli.  PI.,  p.  386.  6  Campbell  v.  Mackay,  1  Myl.  &  Cr. 

3  1  Jac.  R.  151.  603. 
*  Whaley  v.  Dawson,  2  Sch.  &  Lef. 

370. 


520  CIVIL   REMEDIES. 

the  court  will  not  permit  them  to  he  litigated  in  one  record,  even 
though  the  plaintiff  and  defendants  may  l)e  parties  to  the  whole 
transactions  Avhich  form  the  sul)ject  of  the  suit.  The  other  of 
which,  as  applied  to  a  bill,  is  that  a  party  is  brought  as  a  defend- 
ant upon  a  record,  with  a  large  portion  of  which,  and  with  the 
case  made  by  it,  he  has  no  connection  whatever.  A  demurrer 
for  such  a  cause  is  an  objection  that  the  complaint  sets  forth  mat- 
ters which  are  multifarious  ;  and  the  real  cause  of  objection  is,  as 
illustrated  by  the  old  form  of  demurrer,  that  it  puts  the  parties  to 
great  and  useless  expense,  —  an  objection  which  has  no  applica- 
tion in  a  case  of  mere  misjoinder  of  parties.  Upon  this  subject 
Judge  Story  says:  '  In  the  former  class  of  cases,  where  there  is 
a  joinder  of  distinct  claims  between  the  same  parties,  it  has  never 
been  held  as  a  distinct  proposition  that  they  cannot  be  united, 
and  that  the  bill  is  of  course  demurrable  for  that  cause  alone,  not- 
withstanding the  claims  are  of  a  similar  nature,  involving  similarr 
principles  and  results,  and  may  therefore  without  inconvenience 
be  heard  and  adjudged  together.  If  that  proposition  were  to  be 
established  and  carried  to  its  full  extent,  it  would  go  to  prevent 
the  uniting  of  several  demands  in  one  bill,  although  the  parties 
were  liable  in  respect  to  each,  and  the  same  parties  were  inter- 
ested in  the  property  which  may  be  the  subject  of  each.  Such  a 
rule,  if  established  in  equity,  would  be  very  mischievous  and  op- 
pressive in  practice,  and  no  possible  advantage  could  be  gained  by 
it.'  ^  He  states  in  conclusion  the  result  of  the  principles  of  the 
cases  to  be,^  '  That  Avhere  there  is  a  common  liability  in  the  de- 
fendants, and  a  common  interest  in  the  plaintiffs,  different  claims 
to  propert}',  at  least  if  the  subjects  are  such  as  may  without 
inconvenience  be  joined,  may  be  united  in  one  and  the  same  suit ; 
and  further,  that  where  the  interests  of  the  plaintiffs  are  the  same, 
although  the  defendants  may  not  have  a  coextensive  common  in- 
terest, but  their  interests  may  be  derived  under  different  instru- 
ments, if  the  general  objects  of  the  bill  will  be  promoted  by  their 
being  united  in  a  single  suit,  the  court  will  not  hesitate  to  sustain 
the  bill  against  all  of  them.'  "  3 

§  487.  The  observations  of   Mr.  Calvert  upon  the  distinction 
'between  "subject"  and  "object"  of  the  action,  and  ujjon  the 

1  Story's  Eq.  PI.,  §§  531,  532.  3  Wilson  v.  Castro,  31   Cal.  420,  426- 

■^  Ibid.  §§  533,  534.  431,  per  Currey  J. 


JOINDER   OP   CAUSES   OF    ACTION.  521 

sense  in  which  the  former  term  is  used  in  the  common  method  of 
stating  the  general  rides  of  equity  procedure,  are  so  Yaluahle  and 
instructive,  that  I  shall  quote  them,  with  some  condensation. 
They  apply  as  well  to  the  doctrine  of  parties  heretofore  dis- 
cussed as  to  the  particular  language  of  the  codes  under  con- 
sideration in  the  present  section.  After  laying  down  the  equity 
rule  as  to  parties  in  the  customary  form  adopted  by  several  emi- 
nent judges,  in  which  the  necessity  or  propriety  of  their  being 
joined  is  made  to  depend  upon  their  interest  in  the  "  subject "  of 
the  suit,^  he  proceeds  r^  "  The  expression  'subject  of  suit'  may 
mean  one  of  two  things,  —  either  the  fund  or  estate  respecting 
which  the  question  at  issue  has  arisen,  or  else  that  question  itself. 
For  instance,  in  a  foreclosure  suit  it  may  mean  either,  in  the  first 
sense,  the  mortgage  debt  or  mortgaged  premises,  or,  in  tlie  second 
sense,  the  question  whether  a  foreclosure  ought  or  ought  not  to 
take  place."  He  goes  on  to  show  by  citations  from  their  judg- 
ments that  in  the  cases  quoted  below.  Lord  Eldon  and  Sir  Wil- 
liam Grant  used  the  phrase  in  the  first  sense,  and  adds :  "  If  the 
words  '  subject  of  suit '  were  taken  in  that  very  extensive  mean- 
ing in  which  Lord  Eldon  and  Sir  William  Grant  used  them,  the 
general  rule  as  laid  down  by  them  would  be  inconsistent  with 
several  distinctions  which  are  firmly  established."  This  state- 
ment he  illustrates  by  a  reference  to  many  instances  in  Avhich  it 
is  well  settled  that  persons  who  are  directly  interested  in  the 
property,  fund,  or  estate  affected  by  the  action,  need  not  be  made 
parties,  —  as  for  example  in  an  action  by  or  against  trustees,  the 
cestuis  que  trustent  are  under  some  circumstances  neither  neces- 
sary nor  proper  parties.'^ 

§  488.  Upon  these  premises  Mr.  Calvert  proceeds  to  develop 
his  own  views  as  follows :  "  The  rule,  then,  which  has  been  stated 
in  these  cases  in  reference  to  the  '  subject  of  the  suit,'  meaning 
thereby  the  estate  or  fund  on  which  the  question  at  issue  has 
arisen,  does  not  appear  to  be  adapted  to  general  application.  It 
must  ue  taken  in  connection  with  other  authorities  which  will  now 
be  quoted."  The  authorities  then  cited  by  him,  while  using  the 
same  phrase,  "  subject  of  the  suit,"  make  the  necessity  of  a  person's 

^  See  Lord  Redesdale,  Plead.  164,  170  ;  Lord  Eldon  in  Cockburn  v.  Thompson,  16 

Lord  Hardwicke  in  Poor  u.  Clarke,  2  Atk.  Ves.  325  ;  Calvert  on  Parties,  pp.  3,  4. 
515 ;  Lord  Thurlow  in  Anon.  1  Ves.  29  ;  '^  Calvert  on  Parties,  p.  5. 

Sir  VVilliara  Grant  in  Palk  v.  Clinton,  12  3  Ibid.  pp.  6,  7,  8. 

Ves.   58 ;  Wilkins  v.  Fry,  1   Meriv.  262 ; 


522  CIVIL    REMEDIES. 

beinjT  joined  as  a  party  to  dej)ond  upon  liis  interest  in  the  questions 
involved  in  the  litigation^  and  the  effect  which  the  decree  will  have 
upon  that  interest.  This  doctrine  was  tersely  expressed  by  Lord 
Lyndhurst :  "  The  general  rule  is,  that  all  persons  who  are  inter- 
ested in  the  question  must  be  parties  to  a  suit  instituted  in  a 
court  of  equity."  ^  He  thus  sums  up  the  matter:  "  Not  all  con- 
cerned in  the  subject-matter  respecting  which  a  thing  is  demanded, 
but  all  concerned  in  the  very  thing  ivhich  is  demanded.,  the  matter 
petitioned  for  in  the  prayer  of  the  bill,  in  other  words,  the  object  of 
suit,  should  be  made  parties  in  equity.  Upon  a  combination  of  all 
these  authorities,  it  is  proposed  to  state  the  general  rule  in  the  fol- 
lowing words :  All  persons  having  an  interest  in  the  object  of  the 
suit  ought  to  be  made  parties."  ^ 

§  489.  This  theory  is  open  to  a  very  plain  criticism.  Assuming 
that  "subject  of  the  suit"  may  be  used  in  the  two  senses  men- 
tioned by  Mr.  Calvert,  and  conceding  that  the  rule  requiring  all 
persons  interested  in  the  "  subject,"  taken  in  the  first  of  these 
senses,  to  be  made  parties,  would  not  be  universally  correct,  the 
natural  conclusion  would  be  that  the  phrase  "  subject  of  the  suit," 
as  found  in  the  general  rule,  should  be  taken  in  its  second  sense. 
The  author  seems  in  his  argument  to  reach  this  position ;  but  in 
the  very  act  of  arriving  at  this  result  he  confounds  this  second 
sense  of  the  expression  with  a  very  different  thing,  — the  object  of 
the  suit.  The  "  object  of  the  suit  "  is,  as  he  states  it  to  be,  the 
very  relief  prayed  for  by  the  bill,  the  remedy  asked  and  eranted  ; 
but  this  relief  or  remedy  is  certainly  not  identical  with  the  "  sub- 
ject of  the  suit"  used  in  its  secondary  meauing.  Taking  his 
illustration  of  the  foreclosure  suit,  the  "  subject "  may  be  the  mort- 
gage debt  or  the  mortgaged  premises  on  the  one  hand,  or  the 
question  whether  a  foreclosure  ought  or  ought  not  to  take  j)lace 
on  the  other.  The  latter  is  clearly  not  the  same  as  the  sale  of 
the  land  and  the  payment  of  the  debt  out  of  the  proceeds,  which 
is  the  only  object  of  the  action.  It  would  seem  very  clear  then, 
by  the  author's  own  argument,  that  the  final  conclusion  which  he 
reaches  is  not  derived  from  his  premises  nor  established  by  his 
reasoning.     The  authorities  agree,  in  one  form  of  expression  or 

>  Small  V.  Atwood,  Younjie,  458.     The  Smith  v.  Snow,  3  Madd,  R.  10  ;  Lloyd  v. 

other  J/t/a  cited  by  Mr  Calvert  are  Lord  Lander,  5  Madd.  R.  289  ;  Lord  Hardwicke 

Loughborough  in  King  v.  Martin,  2  Ves.  in  Poore  ".  Clarke,  2  Atk.  515;   Com.  Dig. 

643;  Lord  Eldon  m  Fenton  r.  Hughes,  7  Tit.  Chan.,  E.  2. 

Ves.  288;  SirT.  Plumer  in  Whitworth  v.  2  Calvert,  pp.  10,  11. 
Davis,  1  Ves.  &  B.  550 ;  Sir  John  Leach  in 


JOINDER   OP   CAUSES   OP   ACTION.  523 

another,  that  all  persons  materially  interested  in  the  "  subject  of 
the  suit"  should  regularly  be  made  parties.  The  "  subject  of  the 
suit"  may  be  the  fund,  estate,  or  property,  in  respect  of  which 
the  action  is  maintained  ;  and  it  is  true,  that,  in  a  very  large  num- 
ber of  instances,  —  in  fact,  in  a  very  large  majority  of  instances,  — 
all  the  persons  interested  in  this  fund  or  estate  should  be  parties 
in  an  equity  suit.  But  the  "  subject  of  the  suit "  may  be  regard- 
ed as  describing  the  questions  respecting  this  fund  or  estate  which 
are  involved  in  the  litigation  ;  and  if  the  rule  as  just  stated  is  too 
broad  to  be  of  absolutely  universal  application,  it  is  certainly 
true  that  all  persons  materially  interested  in  these  questions 
ought  to  be  joined  as  parties. 

§  490.  Let  us  apply  Mr.  Calvert's  analysis  of  the  term  to  the 
language  found  in  the  codes.  In  equitable  actions  there  is  gen- 
erally, if  not  quite  always,  a  fund,  or  estate,  or  property,  which 
is  the  subject  of  the  suit,  as  well  as  questions  concerning  the 
same  to  which  the  term  may  also  be  applied.  The  provisions  of 
the  codes,  however,  emljrace  legal  actions  ;  and  in  them  it  cannot 
generally  be  said  that  there  is  any  fund,  property,  or  estate,  in  re- 
lation to  which  the  questions  at  issue  have  arisen,  and  which  can 
be  regarded  as  the  "subject."  In  a  very  large  projwrtion  of 
legal  actions,  therefore,  the  term  "  subject  of  the  action  "  can  only 
be  conceived  of  in  the  second  sense  which  has  been  attributed  to 
it,  and  denotes  the  totality  of  questions  at  issue  between  the  par- 
ties, embracing,  in  short,  both  the  primary  rights  and  duties  of  the 
litigants,  and  the  remedial  rights  and  duties  which  have  sprung 
from  the  injuries  complained  of.  The  term  does  not  seem  capa- 
ble of  any  clear  and  complete  analj^sis,  and  the  result  is  that  it 
may  denote  the  "thing,"  if  any,  —  land,  chattel,  person,  fund, 
estate,  and  the  like,  —  in  respect  of  which  rights  are  sought  to  be 
maintained  and  duties  enforced,  or  it  may  denote  the  sum  of  the 
questions  between  the  parties  to  be  determined  by  the  judgment 
of  the  court.  The  latter  meaning  is  distinguishable  and  is  to  be 
distinguished  from  the  "  object  of  the  action,"  which  is  always 
the  relief  to  be  obtained  by  the  determination  of  the  questions 
which  constitute  the  "subject  of  the  action." 


524.  CIVIL   REMEDIES. 


VI.  Instances  in  wJiicJi  all  the  Causes  of  Action  are  ar/ainst  a  single 
defendant,  or  against  all  the  defendants  alike. 

§  491.  In  the  cases  included  in  this  subdivision,  no  question 
can  arise  respecting'  the  proper  joinder  of  defendants.  The  only 
matter  of  inquiry  is,  whether  all  the  causes  of  action  fall  within 
some  one  of  the  classes  enumerated  in  the  statute,  so  that  they 
ma}'  be  united  in  one  judicial  proceeding.  As  the  first  and  most 
general  of  these  classes  has  already  been  fully  considered  in 
another  subdivision,  it  will  not  be  again  referred  to.  No  general 
principle  is  involved  which  needs  illustration  and  explanation  ; 
and  I  shall  simply  state,  first,  a  number  of  cases  as  examples  of  a 
proper  joinder,  and,  secondly,  a  number  of  instances  in  which  the 
joinder  has  been  held  to  be  improper. 

§  492.  All  causes  of  action  arising  out  of  contract  may  be 
united,  and  this  includes,  of  course,  implied  as  well  as  express  con- 
tracts. A  complaint  contained  four  causes  of  action.  The  first 
alleged  that  the  father  of  the  defendant,  being  indebted  to  the 
plaintiff,  devised  and  bequeathed  all  of  his  property,  real  and  per- 
sonal, to  the  defendant,  and  in  his  will  declared  that  "  the  said 
[defendant]  is  to  pay  all  the  debts  that  I  may  owe  at  my  decease," 
"and  also  $35  annually  during  her  lifetime  to"  the  plaintiff; 
that  the  defendant  accepted  such  gifts  and  took  possession  of  the 
property,  and  thus  became  liable  to  pay  such  debts  and  said  an- 
nuity. The  second  count  was  for  money  had  and  received,  the 
third  on  an  express  promise  to  pay  money,  and  the  fourth  for  rent 
due.  Upon  demurrer  to  this  complaint,  the  defendant's  liability 
in  respect  to  the  matters  alleged  in  the  first  count  was  held  to  be, 
in  contemplation  of  law,  on  an  implied  promise,  and  all  the  causes 
of  action  thus  arising  out  of  contract  were  properly  united. ^ 

§  493.  In  certain  cases  the  plaintiff  is  allowed  an  election  to 
treat  the  wrong  done  as  a  tort,  or  to  waive  the  tort,  and  sue  as 
upon  an  implied  promise  of  the  defendant.  When  this  is  permit- 
ted, a  cause  of  action  of  such  a  nature  in  which  the  tort  has  been 
waived  and  the  claim  placed  upon  the  footing  of  an  implied  prom- 
ise may  be  joined  with  causes  of  action  arising  out  of  any  other 
form  of  contract,  express  or  implied ;  as,  for  example,  where  the 
first  cause  of  action  was  for  goods  sold  and  delivered,  and  the 
1  Gridley  v.  Gridley,  2i  N.  Y.  130. 


JOINDER    OF    CAUSES    OF    ACTION.  525 

second  averred  that  the  defendant  had  wrongfully  taken  the  goods 
of  the  plaintiff,  had  sold  them  and  received  their  price,  and  de- 
manded judgment  for  this  sum  so  retained  by  him.^  It  lias  been 
recently  held  by  the  Supreme  Court  in  New  York,  that  where  the 
plaintiff  seeks  to  unite  a  cause  of  action  merely  upon  contract  with 
another  cause  of  action  originally  for  a  tort,  but  in  which  the  tort 
may  be  waived  and  the  liability  treated  as  springing  from  an  im- 
plied promise,  the  pleading  must  show  in  some  direct  manner  that 
•the  tort  is  waived,  and  that  the  claim  is  upon  a  promise  ;  and  to 
this  end  the  plaintiff  must  not  only  allege  the  facts  as  they 
occurred,  but  must  aver  a  promise  to  have  been  made  by  the 
defendant,  in  the  same  manner  as  an  action  of  assumpsit  was 
distinguished  under  the  former  system.^  A  complaint  contained 
three  counts.  The  first  alleged  a  sale  by  the  defendants  of  cer- 
tain county  warrants  drawn  in  their  favor  as  payees,  and  facts 
constituting  an  implied  promise  or  guaranty  that  these  instru- 
ments were  legal  and  genuine,  but  that  they  were  not  genuine, 
and  had  been  adjudged  invalid  as  against  the  county  in  an  action 
brought  upon  them  ;  the  second  sought  to  charge  the  defendants 
as  indorsers,  treating  the  instruments  as  negotiable  notes  ;  the 
third  was  for  mone}^  had  and  received.  These  causes  of  action 
were  held  to  be  properly  united,  since  they  all  arose  out  of 
contract.^ 

§  494.  A  claim  to  recover  possession  of  land,  a  claim  to  recover 
damages  for  its  detention  or  wrongful  taking,  and  a  claim  for  the 
rents  and  profits  thereof  during  the  defendant's  occupancy,  may  all 
or  any  of  them  be  united  in  one  action :  *  but  the  plaintiff  is  not 
compelled  to  do  so  ;  he  may  sue  separately  on  each.^  An  action 
to  compel  the  specific  performance  of  a  contract  to  convey  land, 

^  Hawk   V.    Thome,    54    Barb.    164;  same,  and  a  claim  of  the  rents  and  profits 

Leach  v.  Leach,  2  N.  Y.  S.  C.  657.  for  its  use,  are  distinct  causes  of  action, 

2  Bootii  V.  Farmers'  and  Mech.  Bank,  and  evidence  to  prove  tlie  hitter  is  inad- 
1  N.  Y.  S.  C.  45.  missible   under  a   complaint  which  does 

3  Keller  v.  Hicks,  22  Cal.  457.  not  contain  sucli  cause  of  action,  but  sim- 
*  Vandevoort  v.  Gould,  36  N.  Y.  639,     ply  alleges  the  former.     Larned  v.  Hud- 

645  ;  Livingston  v.  Tanner,  12  Barb.  481 ;  son,  57  N.  Y.  151.     It  has  been  held  that 

Holmes  v.  Davis,  21  Barb.  265  ;  19  N.  Y.  a  claim  to  recover  possession  of  one  par- 

488  ;  Tompkins  i\  White,  8  How.  Pr.  520  ;  eel  of  land  cannot  be  joined  with  a  similar 

Armstrong  v.   Hinds,  8  Minn.   254,  256  ;  claim  in  respect  to  another  and  distinct 

Walker  v.  Mitchell,  18  B.  Mon.  541 ;  Burr  parcel.     Holmes    v.    Williams,    16    Minn. 

V.  Woodrow,  1  Bush  (Ky.),  602;  Sullivan  164,  169. 

V.  Davis,  4  Cal.  291.     A  claim  to  recover  ^  Ibid, 
land,  with  damages  for  withholding  the 


626  CIVIL   REMEDIES. 

is,  within  the  meaning  of  the  statute,  an  action  to  recover  posses- 
sion of  hinds,  and  may  be  united  with  a  cause  of  action  for  dam- 
ages on  account  of  defendant's  delay  in  performing  the  contract.^ 
In  like  manner,  a  claim  to  recover  possession  of  chattels  may  be 
united  with  a  claim  for  damages  for  their  taking  or  detention.^ 

§  495.  Causes  of  action  for  injuries  to  property  form  a  distinct 
class,  and  the  generality  of  <his  language  permits  the  union  of 
claims  arising  from  injuries  of  all  kinds,  whether  with  or  without 
force,  whether  direct  or  consequential,  and  whether  to  real  or  to' 
personal  property.  Singularly  enough,  injuries  to  the  person  are 
placed  in  the  same  group  in  most  of  the  States,  rather  than  in  a 
class  by  themselves,  or  with  injuries  to  character.  The  following 
are  examples  of  causes  of  action  arising  from  injuries  to  property 
which  have  been  held  properly  united  in  a  single  suit :  in  an  ac- 
tion against  a  railroad  company  (1)  for  damages  resulting  from  the 
unlawful  throwing  down  the  fences  on  plaintiff's  farm,  whereby 
cattle  entered  and  destroyed  the  growing  crops  ;  (2)  for  damages 
caused  by  water  thrown  on  to  the  farm  by  means  of  an  embank- 
ment ;  (3)  for  damages  from  earth  piled  upon  the  farm,  obstructing 
the  passage  of  teams  and  the  free  use  of  the  land  ;  (4)  for  damages 
occasioned  by  the  killing  of  cattle  l)y  means  of  passing  engines  ;  ^  an 
action  by  a  mine-owner,  alleging  (1)  injuries  caused  by  the  burst- 
ing of  defendant's  dam,  negligently  constructed,  whereby  gold- 
bearing  earth  was  washed  away,  and  (2)  damages  resulting  from 
the  delay  and  hinderance  in  working  the  mine;*  where  the  com- 
plaint contained  two  counts,  the  first  being  for  trespasses  done  to 
the  land  prior  to  its  conveyance  to  the  plaintiff,  the  claim  having 
been  assigned  to  him,  and  the  second  alleged  that  the  plaintiff"  was 
owner  and  in  possession  of  the  land,  that  the  defendants  were 
about  to  enter  upon  the  same  and  quarry  and  carry  away  min- 
erals therefrom,  and  prayed  an  injunction  restraining  the  tres- 
passes, the  two  causes  of  action  were  held  to  be  properly  joined, 
although  one  was  legal  and  the  other  equitable.-^  On  the  same 
principle,  in  a  suit  to  recover  possession  of  land,  a  separate  cause 

1  Worrall  v.  Muiin,  88  N.  Y.  137.     A  30  Mo.  202  ;   and  see  Tendesen  v.  Mar- 

denianil  for  a  spocific  performance  against  shall,  3  Cal.  440. 

A.  cannot  be   united   with  a  demand  to  *  Fraler  v.  Sears  Union  AVater  Co.,  12 

recover  possession  against  B.     Fagan  v.  Cal.  555. 

Barnes,  14  Flpr.  53,  56.  &  More  v.  Massini,   32  Cal.   590,  595, 

-  Pharis  i\  Carver,  13  B.  Mon.  236.  per  Siiapter  J.     The  opinion  in  this  case 

3  Clark's  Adm'r  v.  Han.  &  St.  Jo.  R.  R.,  is  instructive. 


JOINDER   OF   CAUSES   OF    ACTION.  527 

of  action  may  be  added  to  restrain  a  threatened  trespass  and  com- 
mission of  waste. ^  A  cause  of  action  for  deceit  practised  in  the 
sale  of  chattels  may  be  joined  with  one  for  the  unlawful  taking 
and  conversion  of  other  goods  ;  the  claim  of  damages  for  the  fraud 
in  such  a  case  arises  from  an  "  injury  to  property "  within  the 
meaning  of  the  codes.^ 

§  496.  Within  the  class  of  "  injuries  to  character  "  fall  not  only 
actions  for  libel  and  for  slander,  but  those  for  malicious  prosecu- 
tion ;  the  gist  of  the  latter,  according  to  the  old  authorities,  being 
the  wrong  done  to  the  plaintiif 's  reputation.  A  cause  of  action 
for  malicious  prosecution  may,  therefore,  be  joined  with  one  for 
libel  or  slander,  or  both.^ 

§  497.  The  following  are  some  special  cases.  In  Wisconsin  a 
complaint  was  sustained  in  an  action  by  a  creditor,  one  count  of 
which  set  up  a  cause  of  action  against  a  bank  to  recover  certain 
property  or  its  value,  and  another  count  alleged  a  cause  of  action 
against  delinquent  stockholders  of  the  corporation.*  Where  a 
complaint  contained  two  causes  of  action,  the  first  to  enforce  an 
implied  trust  alleged  to  have  arisen  in  favor  of  the  plaintiff  on  the 
conveyance  of  lands  from  himself  to  the  defendant,  and  the  second 
to  enforce  a  vendor's  lien  on  the  same  lands,  they  were  held  to  be 
properly  united,  since  both  arose  out  of  trusts,  the  one  by  virtue 
of  a  contract,  and  the  other  by  operation  of  law."^  In  another 
equitable  suit  the  joinder  of  four  causes  of  action  was  sustained, 
where  the  first  was  to  reform  a  certain  trust  deed  by  inserting  the 
name  of  a  trustee,  and  to  foreclose  it  when  reformed,  the  secoud 
was  to  foreclose  a  mortgage  upon  the  same  land,  while  the  third 
and  fourth  were  to  enforce  certain  charges  which  were  liens  on 
the  land,  and  which  the  plaintiff  had  been  compelled  to  pay  in 
order  to  protect  his  security.^ 

§  498.  All  of  the  foregoing  cases  were  decided  under  State  codes 
which  contain  substantially  the  same  provisions  and  the  same 
division  into  classes.  In  Indiana  and  Iowa,  it  will  be  remem- 
bered, the  corresponding  sections  of  the  statute  are  peculiar,  and 

1  Natoma  Water  Co.  v.  Clarkin,  14  *  Seaman  v.  Goodnow,  20  Wise.  27, 
Cal.  544.  sed  qu. 

2  Cleveland  v.  Barrows,  59  Barb.  364,  &  Burt  v.  W^ilson,  28  Cal.  632. 

374,  375,  per  T.  A.  Johnson  J.  ^  Burnside  v.  Wayman,   49  Mo.  356. 

•*  Martin  v.  Mattison,  8  Abb.   Pr.  3;  The  "  trust  deed"  mentioned  was,  in  fact, 

Hull  V.  Vreeland,  18  Abb.  Pr.  182  ;  Wat-  a  form  of  security  used  in  several  of  the 

son  V.  Hazzard,  3  Code  Rep.  218;  Shore  States  instead  of  a  mortgage. 
V.  Smith,  15  Ohio  St.  173. 


528  CIVIL    UKMEDIES. 

more  latitude  is  permitted,  especially  in  the  latter  State,  in  the 
joinder  of  unlike  causes  of  action.  As  in  Iowa,  all  legal  or 
equitable  causes  of  action  may  be  united,  a  claim  arising  upon 
contract  may  be  included  in  the  same  petition  with  one  for  dam- 
ages resulting  from  any  kind  of  tort.^  And  where  twenty-two 
different  parcels  of  land  belonging  to  the  same  owners  had  been 
conveyed  to  the  plaintiff  by  as  many  separate  tax  deeds,  he  was 
permitted  to  foreclose  all  these  deeds,  and  thus  cut  off  the  owner's 
right  of  redemption  in  one  action.^  In  construing  the  sections  of 
the  Iowa  code  which  give  the  trial  court  a  discretion  in  reference 
to  the  joinder  of  unlike  causes  of  action,  and  which  authorize  it  to 
compel  an  election,  or  to  strike  out  on  tlie  defendant's  motion,  it 
is  held  that  the  provision  for  compelling  the  plaintiff  to  elect  ap- 
plies only  to  a  case  where  the  various  causes  of  action  set  forth  in 
the  petition  are  merely  different  modes  of  stating  one  and  the 
same  demand,  and  the  defendant  must  file  an  affidavit  showing 
this  fact  as  the  basis  of  his  motion  ;  but  the  court  may,  on  defend- 
ant's motion,  strike  out  a  cause  of  action  which  it  deems  impos- 
sible or  inconvenient  to  try  with  the  others,  but  in  no  case  is  a 
demurrer  the  proper  remedy.^ 

§  499.  In  Indiana,  a  cause  of  action  by  a  wife  for  an  absolute 
divorce  was  held  properly  joined  with  a  cause  of  action  to  compel 
the  specific  performance  of  an  agreement  to  convey  certain  lands 
to  her  made  b}^  tlie  husband  at  the  time  of  their  separation.'*  In 
California,  by  virtue  of  the  provisions  of  a  special  statute,  a  cause 
of  action  against  a  sheriff  to  recover  damages  for  his  neglect  to 
execute  and  return  process  may  be  joined  with  a  claim  to  re- 
cover a  statutory  penalty  for  the  failure  in  his  official  duty.^ 

§  500.  I  shall  conclude  this  section  with  a  classified  series  of 
decisions  which  will  illustrate  the  improper  union,  of  different 
causes  of  action.     Except  in  Iowa,  the  rule  is  universal  that  a 

1  Turner  v.  First  National  Bank,  2G  committed    upon  each;   but,  no    motion 

Iowa,  G(J2.  having;;  been  made   to  strike  out,  tlie   ir- 

■■'  ByinjTton  v.  Woods,  13  Iowa,  17,  19.  regularity  was  thereby  waived.     Grant  v. 

See,  per  contra,  Turner  v.  Duchman,   17  McCarty,  38  Iowa,  408  :  an  action  by  two 

Wise.  500.  persons  not  partners  for  a  slander  of  each, 

3  Reed  v.  Howe,  28  Iowa,  2u0,  252 ;  but  on  the  trial  the  case  was  severed,  and 

Iowa,  &c   R.  R.  V.  Perkins,  28  Iowa,  281,  the  trial  proceeded  on  behalf  of  one  alone, 

In   the    following    cases,    the   causes    of  and   this    was   held    proper.      Hinkle   v. 

action  were  held  to  have  been  improperly  Davenport,  38  Iowa,  355. 
joined  :  an  action  by  two  piaintitis  for  the  *  Fritz  v.  Fritz,  23  Ind.  388. 

destruction   of  chattels  owned   by   them  5  Pearkes  v.  Freer,  9  Cal.  642. 

jointly,  and  also  for  an  assault  and  battery 


JOINDER    OP    CAUSES    OF    ACTION.  529 

cause  of  action  upon  contract  cannot  be  joined  with  one  to 
recover  damages  for  a  tort,  unless  both  should  arise  out  of  the 
same  transaction,  and  thus  fall  within  the  inclusive  terms  of 
the  first  class.  The  following  are  examples  merely  of  this  ele- 
mentary rule  :  A  count  against  the  defendant  for  his  wrongful  acts 
as  president  of  a  bank,  and  one  against  him  as  a  stockholder  in 
such  bank  to  recover  on  its  notes,  Avere  improperly  embraced  in 
the  same  complaint ;  ^  also  a  claim  against  certain  part  owners 
of  a  vessel  to  recover  her  hire,  which  they  had  received,  and  one 
to  restrain  them  from  a  threatened  wrongful  sale  of  the  ship.^  It 
has  been  held  that  a  demand  arising  from  the  breach  of  a  war- 
ranty given  upon  the  sale  of  chattels  cannot  be  joined  with  one 
based  upon  the  vendor's  deceit  practised  in  the  same  sale.^  Not- 
withstanding these  decisions,  it  is  impossible  to  conceive  of  two 
legal  causes  of  action  which  more  completely  and  accurately  cor- 
respond to  the  language  of  the  codes,  as  "  arising  out  of  the  same 
transaction."  The  bargain  between  the  parties  is  certainly  a 
transaction  ;  certain  language  used  by  the  seller  may  amount  to 
a  contract  of  warranty ;  certain  other  language  may  be  the  false 
representations  ;  indeed,  it  is  possible,  and  not  at  all  unlikely, 
that  the  selfsame  words  spoken  by  the  vendor  might  be  at  once 
the  fraudulent  representations  and  the  promise,  for  language 
otherwise  sufficient  is  none  the  less  a  promise  because  the  person 
using  it  knowingly  lied  when  he  uttered  it.  To  say  that  these 
two  demands  do  not  arise  out  of  the  same  transaction,  is  virtually 
to  say  that  no  two  different  legal  claims  ever  can  so  arise.  I  can- 
not regard  these  decisions,  therefore,  otherwise  than  mistaken. 

§  501.  In  an  action  against  a  railroad  company,  the  complaint 
contained  three  counts ;  the  first  for  wrongfully  carrying  away 
and  converting  cattle  ;  the  second  for  the  same  injury  done  to 
hogs  ;  and  the  third  set  up  an  agreement  to  transport  cattle  from 
a  specified  place  to  another,  and  averred  a  breach  thereof  by 
means  of  a  negligent  omission  whereby  the  plaintiff  lost  his  cattle. 
On  demurrer,  it  Avassaid  that  the  first  two  causes  of  action,  being 
for  torts,  could  be  joined  ;  but  the  third  was  upon  contract,  and 
its  union  with  the  others  was  error.*     The  joinder  of  a  count  for 

1  Butt  V.  Cameron,  53  Barb.  642 ;  but  '  Springsteed  v.  Lawson,  14  Abb.  Pr. 
see  Wiles  v.  Suydam,  6  N.  Y.  S.  C.  292.  328  ;  Sweet  v.  Ingerson,  12  How.  Pr.  381. 

2  Coster  V.  N.  Y.  &  E.  R.  R.,  3  Abb.  *  Colwell  v.  N.  Y.  &  E.  R.  R.  9  How. 
Pr.  332.  Pr.  811 ;  Hoagland  v.  Han.  &  St.  Jo.  R.  R., 


89  Mo.  451. 


34 


530  CIVIL    REMEDIES. 

tlie  conversion  of  chattels  witli  one  for  money  had  and  received 
would  be  clearly  wrong  ;  ^  and  the  same  is  true  of  any  tort  and 
implied  contract.^  It  is  doubtful  whether  a  cause  of  action  on 
contract  and  one  for  a  tort  to  the  person  can  be  conceived  of  as 
arising  out  of  the  same  transaction,  so  that  they  may  be  embraced 
in  the  same  pleading.  The  attempt,  however,  has  been  made  to 
unite  a  claim  for  the  breach  of  a  written  contract  to  convey  land 
with  a  cause  of  action  for  assault  and  battery  committed  by  the 
defendant  in  forcibly  taking  the  instrument  fiom  the  plaintiff's 
possession,  but  it  was  unsuccessful.^  In  like  manner  a  cause  of 
action  against  a  lessee  arising  upon  the  lease  cannot  be  joined 
with  a  claim  for  damages  on  account  of  injuries  done  to  the  j^rop- 
erty,  unless,  of  course,  the  latter  is  embraced  within  some  stipu- 
lation or  covenant  of  the  lease,  so  that  it  would  in  fact  be  a  de- 
mand on  the  contract.*  It  can  make  no  difference  with  the  rule 
that  the  tort  is  a  fraud  consisting  in  false  statements  or  conceal- 
ments. Thus,  a  complaint  by  an  indorsee  against  his  immediate 
indorser  was  held  bad  on  demurrer,  one  count  of  which  alleged 
the  ordinary  liability  of  defendant  as  indorser,  and  the  other  set 
up  certain  false  representations  as  to  the  solvency  of  the  maker, 
by  which  the  plaintiff  was  induced  to  purchase  the  paper."  The 
rule,  in  short,  applies  to  all  cases  of  demands  based  upon  a  prom- 
ise, express  or  implied,  and  claims  based  upon  fraud,  unless  the 
tort  may  be  waived,  and  the  complaint  be  framed  so  as  to  present 
both  causes  of  action  as  arising  from  contract.^ 

§  502.  Another  particular  rule,  which  is  but  an  application  of 
the  same  doctrine,  requires  that  the  several  causes  of  action 
against  or  for  a  given  jierson  should  all  affect  him  in  the  same 
capacity.  In  other  words  a  demand  for  or  against  a  party  in  his 
personal  character  cannot  be  united  with  another  demand  for  or 
against  him  in  a  representative  character  as  trustee,  executor, 
administrator,  receiver,  and  the  like.  The  reason  usually  given 
for  tliis  rule  when  applied  to  defendants  is,  that  the  judgment 

1  Cobb  V.  Dows,  9  Barb.  230,  and  cases  demised  premises  and  injuring  the  lessee's 

in  last  note.  property  thereon,  cannot  be  joined.    Keep 

~  Hunter  v.  Powell,  15  How.  Pr.  221.  v.  Kaufman,  56  N.  Y.  332. 

3  Elile  V.  Haller,  6  Bosw.  661.  5  Jamison  v.  Copher,  35  Mo.  483. 

*  Edorlin  v.  Judge,  36  Mo.  350.     Con-  ^  Forkner    v.    Hart,    Stanton's    Code 

Tersely,  a  claim  of  damages  for  the  breach  (Ky. )  60 ;  Wilson  ?;.  Thompson,  Ibid.  60 ; 

of  the  lessor's  covenant  of  quiet  enjoy-  Hubbell    v.    Meigs,  50   N.   Y.  480,    487  ; 

ment,  and  a  claim  of  damages  for  a  tres-  Booth  v.  Farmers'  and  Mechanics'  Bank, 

pass  in  his  wrongful  entering  upon  the  1  N.  Y.  S.  C.  45. 


JOINDER    OF   CAUSES    OF   ACTION.  531 

upon  one  cause  of  action  would  be  against  the  defendant  per- 
sonally, to  be  made  de  bonis  propriis,  while  the  judgment  upon 
the  other  cause  of  action  would  be  against  him  in  his  repre- 
sentative or  official  capacity,  and  not  perhaps  to  be  made  out  of 
his  own  property  ;  as,  for  example,  it  might  be  made  de  bonis 
testato7-is.  This  reasoning,  borrowed  from  the  old  law,  is  a  mere 
formula  of  words,  for  there  is  nothing  in  the  nature  of  things 
which  prevents  such  a  double  judgment.  It  is  just  as  easy  for 
such  a  judgment  to  be  rendered  in  one  action  as  it  is  for  two 
distinct  judgments  to  be  gi-anted  in  separate  suits.  The  argu- 
ment, however,  like  so  much  of  so-called  legal  reasoning,  still 
has  convincing  force  with  most  of  the  courts,  even  while  admin- 
istering the  reformed  system.  The  following  cases  are  given  as 
illustrations  of  this  doctrine,  and  in  all  of  them  the  joinder  was 
pronounced  improper  :  A  complaint  on  a  partnership  debt  against 
the  defendant  as  surviving  partner,  and  against  him  in  a  separate 
count  as  executor  of  his  deceased  partner  ;  ^  against  the  defend- 
ant personally,  and  also  as  an  executor  or  administrator ;  ^  in  a 
suit  against  an  executor  or  administrator,  a  demand  which  existed 
against  the  deceased  in  his  lifetime,  and  a  different  demand 
which  arose  from  a  promise  made  by  the  executor  or  adminis- 
trator after  the  death,  for  as  to  the  latter  claim  the  defendant  is 
personally  liable.^  On  the  same  principle  a  demand  upon  a  con- 
tract between  the  plaintiff  and  the  defendant,  and  a  claim  b}'  the 
plaintiff  as  a  shareholder  in  an  unincorporated  company  against 
the  defendant  as  president  thereof,  in  respect  of  matters  connected 
with  the  management  of  its  affairs,  were  held  to  be  improperly 
joined,  since  the  defendant's  liability  if  any  in  the  latter  cause  of 
action  existed  against  him  as  a  trustee.*  The  plaintiff  must  also 
sue  in  the  same  capacity  in  respect  of  all  the  causes  of  action. 
He  cannot  in  one  count  sue  as  an  executor  or  administrator,  and 
in  another  sue  in  his  personal  character.^  In  an  action  for 
malicious  prosecution  the  complaint  contained  three  counts :  the 
first  for  the  malicious  prosecution  of  the  plaintiff  himself;  the 

1  Landau  v.  Levy,  1  Abb.  Pr.  376.  *  Warth  v.  Radde,  18  Abb.  Pr.  396. 

2  McMalion  v.  Allen,  3  Abb.  Pr.  89.  5  Lucas  v.  N.  Y.  Cent.  R.  R.,  21  Barb. 

3  Ferrin  v.  Myrick,  41  N.  Y.  315,  322  ;  245.  But  see  Armstrong  v.  Hall,  17  How. 
Austin  V.  Munro,  47  N.  Y.  360,  364 ;  s.  c.  Pr.  76,  per  C.  L.  Allen  J.,  at  Special  Term, 
4  Lans,  67.  See,  however.  Tradesman's  — a  decision  in  direct  opposition  to  the 
Bank  v.  McFeely,  61  Barb.  522,  wjiich  rule  stated  in  the  text. 

cannot  be  regarded  as  correct  in  the  light 
of  these  other  decisions. 


532  CIVIL    REMEDIES. 

second  for  the  same  wrong  done  to  his  wife,  she  having  been 
imprisoned ;  and  the  third  for  a  like  tort  to  his  minor  chil- 
dren. The  only  legal  ground  for  recovery  on  the  second  and 
third  of  these  counts  was  declared  to  be  the  loss  of  the  wife's 
society  in  the  one  case,  and  of  the  children's  services  in  the 
other ;  as  these  injuries  were  personal  to  the  plaintiff,  they  could 
be  joined  with  the  cause  of  action  alleged  in  the  first  count  for 
the  tort  directly  to  himself.^ 

§  503.  The  cases  which  follow  do  not  admit  of  any  classifi- 
cation, and  several  of  them  are  of  doubtful  authority,  even  if  not 
palpably  erroneous.  A  cause  of  action  for  a  limited  divorce  on 
the  ground  of  cruelty,  desertion,  and  the  like,  cannot  be  united 
with  one  for  an  absolute  divorce  on  account  of  adultery,  or  of  any 
other  matter  prescribed  by  statute.  The  two  demands  are  simply 
incompatible.^  It  was  decided  by  one  judge  in  New  York  that  a 
demand  to  recover  possession  of  a  chattel  cannot  be  united  with 
a  claim  of  damages  for  the  taking,  detaining,  and  converting 
the  same.  But  as  the  codes  expressly  authorize  the  joinder  of 
claims  for  the  possession  of  chattels,  and  of  damages  for  the  with- 
holding the  same,  this  decision  can  hardly  be  sustained.  "  With- 
holding "  clearly  includes  "  detaining,"  and  as  it  is  not  a  technical 
term,  it  was  doubtless  intended  to  embrace  "  taking  "  and  "  con- 
version "  as  well.^  A  cause  of  action  to  recover  the  possession  of 
a  certain  parcel  of  land,  cannot,  it  has  been  said,  be  united  with  a 
demand  of  damages  caused  by  the  defendant's  trespasses  upon 
other  lands  of  the  plaintiff.^  It  has  also  been  held  that  a  claim 
to  recover  possession  of  land,  and  a  demand  of  damages  for  the 
defendant's  tortious  entry  upon  the  same  land,  cannot  be  joined, 
because  they  are  eiitirely  inconsisteyit.^ 

§  504.  In  one  or  two  of  the  States,  actions  for  injuries  to  the 

1  Rogers  v.  Smith,  17  Ind.  323.  ferred  to  the  single  class  of  "injuries  to 

2  Henry  y.  Henry,  17  Abb.  Pr.  411;  property"?  The  recovery  of  possession 
Mcintosh  r.  Mcintosh,  12  How.  Pr.  289.  is  merely  the  relief,  and  not  the  cause  of 
It  would  be  difficult  to  determine  in  what  action. 

class  the  action  for  either  kind  of  divorce  ^  Budd  v.  Bingham,  18  Barb.  494,  per 
falls.  One  judge  in  the  last  case  sug-  Brown  J.  It  is  difficult  to  perceive  this 
gested  that  limited  divorce  was  a  claim  for  inconsistency.  This  and  some  similar  de- 
injury  to  tiie  person.  It  seems  to  be  ta.sMs  cisions  are  cited,  not  because  they  have 
omissus.  any  authority  or  any  value,  but  to  com- 

3  Maxwell  v.  Farnam,  7  How.  Pr.  236,  plete  the  statement  of  the  judicial  inter- 
per  Harris  J.,  at  Special  Term.  pretation  put  upon  tliis  i^rovision  of  the 

*  Hulce  V.  Thompson,  9  How.  Pr.  113.     statute. 
But  cannot  botli  causes  of  action  be  re- 


GENERAL   PRINCIPLES   OF   PLEADING.  533 

person  constitute  a  separate  class,  and  are  not  grouped  together 
with  those  for  injuries  to  property.  Thus  in  California,  an 
"  action  to  recover  damages  for  alleged  injuries  to  the  person 
and  property  of  the  plaintiff,  and  for  his  false  imprisonment,  and 
for  forcibly  ejecting  him  from  a  house  ahd  lot  in  his  possession, 
and  detaining  the  possession  thereof  from  him,"  was  held  to  be 
an  improper  union,  as  it  embraced  causes  belonging  to  two  if  not 
three  of  the  classes  specified  in  the  code  ;  ^  and  in  another  case, 
the  joining  of  a  claim  to  recover  possession  of  land,  damages  for 
its  detention,  damages  for  the  forcible  expulsion  of  the  plaintiff 
from  the  premises,  and  the  value  of  the  improvements  made  by 
him,  was  pronounced  equally  an  error  for  the  same  reason.^ 

§  505.  An  action  to  quiet  the  title  to  three  different  tracts  of 
land  which  had  belonged  originally  to  different  owners,  and  which 
the  plaintiff  held  under  three  distinct  tax  deeds  executed  at 
separate  times,  was  held  in  Wisconsin  to  violate  the  requirements 
of  the  code.  The  proceeding  was  likened  by  the  court  to  the 
foreclosure  in  one  action  of  three  different  mortgages  given  by 
three  different  owners  upon  three  separate  parcels  of  land.-^ 


SECTION    THIRD. 

THE   GENERAL  PRINCIPLES  OF   PLEADING. 

§  506.  In  order  that  the  system  of  pleading  introduced  by  the 
reformed  procedure  may  be  accurately  understood,  I  shall  briefly 
describe  the  essential  principles  and  doctrines  of  those  which 
prevailed  in  different  courts  at  the  time  of  its  adoption,  and  the 
comparison  which  can  thus  be  made  will  be  of  great  assistance  in 
arriving  at  correct  results.  The  three  types  of  pleading  then 
known  either  in  England  or  in  this  country  were  the  common 
law,  the  equity,  and  that  which  in  the  absence  of  a  distinctive 
name  I  shall  call  "  pleading  by  allegation."*  The  last-mentioned 
method  was  used  in  the  courts  of  admiralty,  of  probate  and 
divorce,  the  ecclesiastical  courts,  and  wherever  the  law  as  ad- 
ministered was  based  directly  upon  the  doctrines  and  modes  of 

1  McCarty  v.  Fremont,  23  Cal.  196,  see  Bowles  v.  Sacramento  Turnp.  Co.,  5 
197.  Cal.  224 ;  Bigelow  ;;.  Gove,  7  Cal.  183. 

2  Mayo  V.  Madden,  4  Cal.  27.     And         ^  Turner  u.  Duchman,  23  Wise.  500. 


634  CIVIL    REMEDIES. 

the  Roman  Civil  Law.  Its  peculiar  features  consisted  (1)  in 
breaking  up  an  entire  pleading  into  a  numljer  of  separate  para- 
graphs, —  technically  "  allegations,"  —  each  of  which  should 
properly  contain  a  single  important  circumstance  or  principal 
fact  going  to  make  out  the  cause  of  action  ;  and  (2)  the  state- 
ment in  each  allegation  of  all  the  minute  and  subordinate  facts 
which  taken  together  compose,  and  are  evidence  of,  the  main  cir- 
cumstance or  fact  relied  upon  by  the  litigant  party  to  sustain  his 
contention.  The  pleading  as  a  whole,  therefore,  comprised  not  only 
averments  of  the  substantial  facts,  the  important  conclusions  of 
fact  which  must  be  established  by  the  proofs,  —  those  facts  Avhich 
in  the  common-law  sj-stem  are  called  "  issuable  "  or  "  material," 
—  but  also  a  narrative  of  all  the  probative  facts,  of  all  the 
.evidence  from  which  the  existence  of  the  "  issuable  "  facts  must 
be  inferred.  A  libel  constructed  upon  this  theory  disclosed  the 
whole  case  of  the  complaining  party  ;  if  properly  framed,  it  set 
forth  in  a  continuous  and  narrative  form  a  complete  account  of 
the  transaction,  describing  the  situation  of  the  parties  at  its  com- 
mencement, all  the  various  incidents  which  happened  in  its  prog- 
ress, its  final  conclusion,  and  the  results  produced  upon  each, 
and  prayed  for  such  relief  as  the  law  affords  in  the  given  case. 
The  codes  of  several  States  have  plainly  intended  to  borrow  one 
feature  of  this  system  ;  that  is,  the  separation  of  the  pleading  into 
a  number  of  distinct  paragraphs  continuously  numbered,  and  each 
comprising  the  statement  of  a  single  material  or  issuable  fact. 
The  second  feature,  namely,  the  narrative  of  probative  facts  and 
circumstances  in  the  manner  above  described,  violates  the  funda- 
mental and  essential  principle  of  the  reformed  procedure. 

§  507.  The  equity  method  of  pleading,  when  freed  from  all  the 
superfluous  additions  which  had  become  incorporated  with  it  in 
practice,  and  when  thus  reduced  to  its  mere  essential  elements, 
consisted  in  a  statement  of  all  the  facts  indicating  the  relief  to 
which  the  complainant  is  entitled,  and  in  this  original  aspect  it 
did  not  differ  in  principle  from  that  prescribed  by  the  codes.  I 
purposely  make  use  of  the  expression  "  facts  indicating  the  relief 
to  which  the  complainant  is  entitled,"  ratlier  than  the  ordinary 
jjhrase  "  facts  constituting  the  complainant's  cause  of  action," 
for  a  reason  which  will  be  fully  explained  in  the  sequel.  I  now 
call  attention  to  the  form  of  expression,  for  it  is  important,  and 
will  assist  in  removing  certain  difficulties  which  have  been  sug- 


PRINCIPLES   OF    EQUITY   PLEADING.  535 

gested  by  some  of  the  judges  in  their  exposition  of  the  codes. 
Practically,  a  bill  in  equit}^,  prior  to  any  modern  reforms,  had 
been  changed  from  the  original  simplicity  as  above  described, 
and  had  come  to  consist  of  three  distinct  parts  or  divisions,  the 
narrative,  the  charging,  and  the  interrogative.  The  first  of 
these  contained  a  statement  of  the  complainant's  case  for  relief ; 
the  second  anticipated  and  rebutted  the  defendant's  supposed 
positions  ;  while  the  last  was  used  to  probe  the  defendant's  con- 
science, and  to  extract  from  him  admissions  under  oath  in  his 
answer  concerning  matters  within  his  own  knowledge  which  the 
existing  rules  of  evidence  did  not  permit  to  be  proved  by  the 
parties  themselves  as  ordinary  witnesses.  The  result  of  these 
modifications  was  an  almost  entire  departure  from  the  simple 
conception  of  equity  pleading.  The  bill  and  answer  were  gen- 
erally made  to  include  the  evidence  by  which  either  party  main- 
tained his  own  contention,  or  defeated  that  of  his  adversary,  and 
also  legal  conclusions  and  arguments  which  more  appropriately 
belonged  to  the  briefs  of  counsel  and  the  discussions  at  the  hear- 
ing. All  this,  I  sa}^  although  very  common  and  perhaps  uni- 
versal in  the  actual  practice  before  any  reforms  through  legislation 
or  rules  of  court,  was  really  unnecessary,  and  formed  no  essential 
part  of  the  theory  of  equity  pleading.  The  only  indispensable 
portion  of  a  bill  was  the  narrative.  Except  for  the  purpose  of 
eliciting  evidence  from  the  defendant,  there  was  no  more  reason 
why  this  should  contain  mere  evidence  of  the  facts  that  were  the 
foundation  of  the  complainant's  demand  for  relief,  as  contradis- 
tinguished from  those  facts  themselves,  than  there  was  for  the 
same  kind  of  probative  matter  to  be  inserted  in  a  declaration  at 
law.  The  bill  in  equity,  as  has  been  already  said,  should  com- 
prise a  statement  of  all  the  facts  which  show  the  relief  to  which 
the  complainant  is  entitled,  which  indicate  the  nature  and  extent 
of  that  relief  whether  total  or  partial,  and  the  modilications  or 
exceptions  to  be  made  in  it ;  while  the  answer  should  perform 
the  same  office  for  the  defendant.  By  the  application  of  this 
doctrine,  a  bill  in  equity  was  generally  quite  different  in  its  con- 
tents from  a  declaration  at  law  ;  it  was  ordinarily  more  minute 
in  its  averments,  and  contained  statements  of  matter  which  in  a 
legal  action  would  more  naturally  and  properly  belong  to  the 
evidence  rather  than  to  the  allegations  of  issuable  facts.  The 
reason  for  this  distinction  lay  entirely  in  the  difference  between 


536  CIVIL   REMEDIES. 

equitable  and  legal  priniaiy  riolits  and  between  equitable  and 
leti^al  remedies,  especially  in  the  latter.  A  judgment  at  law  was 
always  a  single  award  of  relief ;  the  recovery  either  of  a  specific 
tract  of  land,  or  of  a  specific  chattel,  or  of  a  definite  sum  of 
money,  and  such  judgment,  whatever  might  be  its  amount,  was 
either  wholly  rendered  for  the  plaintiff,  or  wholly  denied.  Further- 
more, the  right  to  recover  a  legal  judgment  always  depended 
upon  the  existence  of  a  compai-atively  few  important  facts,  — 
'•issuable"  or  "material"  facts,  —  and  the  very  definition  of 
an  issuable  fact  is,  one  which,  if  denied  and  not  proved,  would 
prevent  the  plaintiff  from  recovering.  In  equity,  the  primary 
rights  and  remedies  of  the  complainant  were  often  very  different 
fiom  those  which  existed  at  law.  His  remedy  was  not  neces- 
sarily a  single  recovery  of  some  specific  form  of  relief;  it  might 
vary  in  its  nature  and  extent  through  a  wide  range  ;  it 
might  be  total  or  partial,  it  might  be  absolute  or  condi- 
tional. The  defence,  on  the  other  hand,  might  be  total  or 
partial ;  and  it  might  even  consist  of  modifications  made  in 
the  form  of  relief  demanded  by  the  complainant,  or  in  sup- 
plemental provisions  added  thereto  in  order  to  meet  some 
future  contingency.  In  short,  it  was  impossible  to  say  that  the 
complainant's  right  to  recover  always  depended  upon  the  exist- 
ence of  certain  "  issuable  "  facts,  the  failure  to  establish  either 
one  or  even  all  of  which  would  necessarily  defeat  his  contention. 
It  is  true  that  in  some  cases  the  equitable  remedy  sought  by  the 
complainant  might  be  of  such  a  nature  that  it  would  follow  from 
the  proof  of  such  issuable  facts  as  completely  and  directly  as  the 
plaintiff's  right  to  a  common-law  judgment  does  in  a  legal  action. 
While  this  was  possible  in  some  instances,  in  the  great  majority 
of  equitable  actions  the  relief  was  more  complicated  ;  the  primary 
rights  were  more  comprehensive  ;  and  the  decree  as  a  whole  was 
shaped,  modified,  and  adapted  to  various  circumstances  and 
minor  facts  upon  which  individually  the  cause  of  action  or  the 
defence  did  not  entirely  rest,  but  all  of  which  in  combination 
entered  into  the  resulting  remedial  right  belonging  to  the  litigant 
parties.  Now,  on  the  theory  of  equity  pleading,  all  these  facts 
should  be  averred  by  the  complainant  or  the  defendant  as  the 
case  might  be  ;  and  while  it  can  be  properly  said  that  they  all 
indicate  and  affect  the  relief  to  be  awarded  by  the  court,  they 
cannot  all  be  said  "to  constitute  the   cause   of  action"  or  the 


PRINCIPLES    OF   COMMON-LAW   PLEADING.  537 

defence  in  the  same  sense  in  which  the  "  issuable  "  or  "  material  " 
facts  constitute  the  cause  of  action  or  the  defence  in  a  suit  at 
law.  I  repeat  the  statement  already  made,  for  it  is  an  important 
one,  that  this  description  does  not  necessarily  apply  to  every  case 
of  equitable  relief.  Under  certain  circumstances,  and  in  some 
particular  instances,  the  remedy  and  the  right  to  its  recovery  are 
single  and  depend  upon  the  existence  of  a  few  well-defined  and 
controlling  facts  ;  such  facts  are  then  "  material  "  or  "  issuable  " 
in  the  strictest  sense  of  those  terms,  and  they  are  all  that  it  is 
requisite  to  allege  in  the  pleading.  In  most  instances,  however, 
an  equity  pleading  necessarily  contained  allegations  of  facts 
which  were  not  "  issuable  "  in  the  technical  meaning  of  that 
word,  but  which  were  nevertheless  the  basis  of  the  relief  de- 
manded and  obtained.  I  have  dwelt  thus  carefully  upon  the 
foregoing  analysis,  because  it  is  the  element  which  enters  into 
and  decides  a  most  important  question  to  be  considered  in  the 
sequel ;  namely,  whether  the  proper  modes  of  pleading  in  legal 
and  in  equitable  actions  under  the  reformed  procedure  can  be 
referred  to  and  derived  from  the  single  fundamental  princijole 
announced  by  all  the  codes.  Another  essential  feature  belonged 
to  the  equity  method  of  pleading,  and  distinguished  it  from  that 
which  prevailed  in  courts  of  law.  The  facts  upon  which  the  con- 
tentions of  the  litigant  parties  wholly  or  partially  depended  were 
averred  as  they  actually  happened  or  existed,  and  not  the  legal 
effect  or  aspect  of  those  facts.  This  distinction  was  a  vital  one,  as 
will  be  fully  pointed  out  in  the  succeeding  paragraphs,  and  its  rela- 
tions with  the  reformed  theory  of  pleading  are  direct  and  intimate. 
§  508.  I  come  finally  to  the  common-law  system  of  plead- 
ing. It  has  frequently  been  said,  even  by  able  judges,  that  under 
this  method  the  material,  issuable  facts  constituting  the  cause  of 
action,  and  they  alone,  were  to  be  alleged ;  and  that,  as  exactl}'' 
the  same  principle  lies  at  the  basis  of  the  new  system,  the  latter 
has  made  no  substantial  change,  but  has  only  removed  the  un- 
necessary and  troublesome  incidents  which  had  been  gathered 
around  the  original  simple  common-law  conception.  In  support 
of  this  view,  the  general  language  of  Chitty  and  other  text-writers 
is  quoted  as  conclusive.  There  is  just  enough  truth  in  this  de- 
scription of  the  common-law  pleading  to  make  it  plausible  ;  but 
enough  of  error  to  render  it,  when  adopted  as  a  means  of  inter- 
preting the  codes,  extremely  misleading.     In  fact,  it  is  impos- 


538  CIVIL    REMEDIES. 

sible  to  describe  the  common-law  pleadinsr  as  a  unit:  it  was  gov- 
erned by  no  universal  principles;  the  inodes  wliicli  prevailed  in 
certain  actions  were  radically  unlike  those  that  were  employed  in 
others.  I  shall  attempt,  in  a  very  brief  manner,  to  point  out  all 
its  essential  features,  and  to  explain  its  general  character. 

§  509.  In  the  first  place,  certain  elements  were  firmly  incorpo- 
rated into  the  system  which  were  not  really  fundamental  and  es- 
sential, although  often  regarded  and  spoken  of  as  its  peculiarly 
characteristic  requisites.  I  refer  to  the  extreme  nicety,  precision, 
and  accuracy  which  were  demanded  by  the  courts  in  the  framing 
of  allegations,  in  averring  either  the  facts  from  which  the  primary 
rights  of  the  parties  arose,  or  those  wliich  constituted  the  breach 
of  such  rights,  in  the  use  of  technical  phrases  and  formulas,  in 
the  certainty  of  statement  produced  by  negativing  almost  all  pos- 
sible conclusions  different  from  that  affirmed  by  the  pleader,  in 
the  numerous  repetitions  of  the  aame  averment,  and  finally  in 
the  invention  and  enjployment  of  a  language  and  mode  of  expres- 
sion utterly  unlike  the  ordinary  spoken  or  written  English,  and 
meaningless  to  any  person  but  a  trained  expert.  This  require- 
ment of  accuracy  and  precision  was  in  former  times  pushed 
to  an  absurd  and  most  unjust  extreme  ;  as  for  example,  the 
use  of  the  past  tense  "  had,"  instead  of  the  present  "  have," 
in  a  material  allegation,  would  be  fatal  to  the  plaintiff's  recovery. 
If  it  be  said  that  these  extreme  niceties  and  absurd  technicalities 
were  things  of  the  past,  abandoned  by  the  law  courts  in  modern 
times,  a  perusal  of  some  standard  reports  —  for  instance,  those  of 
Meeson  and  Welsby  —  will  show  on  what  grounds  of  the  merest 
form  the  rights  of  litigant  parties  have  been  determined,  even  with- 
in the  present  generation.  Still,  I  do  not  regard  this  precision,  ac- 
curacy, and  general  technicality,  which  actually  distinguished  the 
common-law  system  of  pleading,  as  something  essential  to  its  ex- 
istence, as  its  absolutely  necessary  elements.  It  might  have 
retained  all  its  fundamental  principles  in  respect  to  the  nature  of 
the  allegations  used  and  the  kinds  of  facts  averred,  and  at  the 
same  time  have  employed  the  familiar  language  of  common  narra- 
tive in  making  all  these  averments.  The  essential  elements  of 
the  system  would  then  be  presented  in  their  naked  simplicity. 
The  actual  technicalities  which  have  been  thus  mentioned, 
and  which  were  the  boast  of  the  skilful  special  pleader,  were 
only  a  disgrace  to  the  administration  of  justice.     However  pleas- 


PRINCIPLES   OF   COMMON-LAW   PLEADING.  539 

ant  tliey  might  have  been  as  exercises  in  logic,  they  were  pro- 
ductive of  untold  injustice  to  suitors.  It  is  simply  amazing  that 
they  could  have  been  retained  so  long  and  adhered  to  so  tena- 
ciously, and  even  lauded  with  extravagant  eulogium,  among  peo- 
ples like  the  English  and  the  American.  That  they  were  entirely 
abrogated  by  all  the  codes  of  procedure  is  plain;  and  after  a 
series  of  improvements,  commencing  in  1834,  when  the  celebrated 
"  Rules  of  Hilary  Term  "  were  adopted,  the  British  Parliament 
has  swept  them  out  of  the  English  law,  and  has  introduced  the 
substance  of  the  American  system. 

§  510.  Passing  from  these  technical  incidents,  I  proceed  to  in- 
quire what  were  the  real  and  essential  principles  and  elements  of 
the  common-law  pleading.  How  far  was  it  true  that  the  material 
facts  constituting  the  catise  of  action,  and  these  alone,  were  to  be 
alleged  ?  This  statement  was  partly  correct,  —  that  is,  correct 
under  most  important  limitations  and  reservations,  in  certain  of 
the  forms  of  action  ;  while  in  the  other  of  these  forms  of  action  it 
was  not  true  in  the  slightest  extent ;  in  fact,  it  was  diametrically 
opposed  to  tlie  truth.  I  will  recapitulate  the  important  actions, 
and  refer  them  to  their  proper  classes.  In  ejectment  there  can 
be  no  pretence  that  any  attempt  was  made  to  allege  the  actual 
facts  constituting  the  cause  of  action  ;  the  declaration  and  accom- 
panying proceedings  were  a  mass  of  fictions  which  had  become 
ridicidous,  whatever  may  have  been  their  original  usefulness,  and 
the  answer  was  the  general  issue  ;  the  record  thus  threw  no  light 
upon  the  real  issues  to  be  tried  by  the  jury.  In  trover,  the  aver- 
ments of  the  declaration  were  that  the  plaintiff  Avas  possessed,  as 
his  own  property,  of  certain  specified  chattels  ;  that  he  lost  them  ; 
and  that  the  defendant  found  them,  and  converted  them  to  his 
own  use.  Throwing  out  of  view  the  absurd  fictions  of  a  loss  and 
a  finding,  there  was  here  the  statement  of  two  facts,  namel}^  the 
description  of  the  chattels  so  as  to  identify  them,  and  the  plain- 
tiff 's  property  in  them  ;  but  the  most  important  allegation  of  all, 
the  one  upon  which  in  the  vast  majority  of  cases  the  whole  con- 
troversy would  turn,  was  a  pure  conclusion  of  law.  The  state- 
ment that  defendant  had  converted  the  same  to  his  own  use  did 
not  indicate  any  fact  to  be  considered  and  decided  by  the  jury  in 
reaching  their  verdict.  In  the  action  of  debt,  also,  the  important 
allegation  was  a  mere  conclusion  .of  law,  namely,  that  the  de- 
fendant was  indebted  to  the  plaintiff  in  a  certain  sum  whereupon 


540  CIVIL   REMEDIES. 

an  action  had  accrued ;  and  although  the  declaration  contained  a 
further  statement  of  the  consideration  or  cause  of  the  indebted- 
ness, yet  as  a  whole  it  did  not  pretend  to  set  forth  the  material 
facts  constituting  the  cause  of  action.  In  assumpsit,  the  plead- 
ings Avere  of  two  very  different  species.  In  all  cases  of  implied 
promises,  and  especially  when  the  common  counts  were  resorted 
to,  tlie  averments  were  purely  fictitious,  as  much  so  as  in  eject- 
ment ;  there  was  not  the  slightest  approach  towards  a  statement 
of  the  facts  constituting  the  cause  of  action  as  they  actually  ex- 
isted. When  the  suit  was  brought  upon  an  express  contract,  and 
the  declaration  was  in  the  form  of  a  special  assumpsit,  there  was 
a  greater  appearance  of  alleging  facts  ;  but  even  here  the  facts  were 
stated  in  their  supposed  legal  aspect  and  effect,  as  legal  conclusions, 
and  not  simply  as  they  occurred.  There  are  left  to  be  considered 
the  actions  of  covenant,  detinue,  trespass,  and  case.  In  each  one 
of  these,  according  to  the  nature  of  the  action,  the  facts  consti- 
tuting the  grounds  for  a  recovery  were  more  nearly  stated,  al- 
though in  some  of  them  the  averments  were  required  to  be  made 
in  an  exceedingly  precise  and  technical  manner.  The  declaration 
in  a  special  action  on  the  case  necessarily  comprised  a  narrative  of 
the  actual  facts  constituting  the  cause  of  action  ;  but  as  has  been 
said,  this  narrative  was  thrown  into  a  very  arbitrary,  technical, 
and  unnatural  shape.  It  therefore  bore  some  resemblance  in  sub- 
stance to  a  complaint  or  a  petition,  when  properly  framed  accord- 
ing to  the  reformed  theory ;  and  some  judges  have  even  said  that 
every  such  complaint  or  petition  is  a  declaration  in  a  special  ac- 
tion on  the  case.  The  assertion  so  often  made  by  the  older  text- 
writers,  and  repeated  by  modern  judges,  that  the  common-law 
system  of  pleading  demanded  allegations  of  the  facts  constituting 
the  cause  of  action  or  the  defence,  is  tluis,  as  a  general  proposi- 
tion, manifestly  incorrect,  for. in  many  forms  of  action  there  was 
no  pretence  of  any  such  averments. 

§  511.  But  we  must  go  a  step  farther  in  order  to  obtain  an  ac- 
curate notion  of  tlie  common-law  theory.  In  all  the  instances 
where  fictions  were  discarded,  and  where  the  important  allega- 
tions were  not  mere  naked  conclusions  of  law,  but  where,  on  the 
contrary,  the  plaintiff  assumed  to  state  the  "  issuable  "  facts  con- 
stituting his  cause  of  action,  he  did  not  narrate  the  exact  transac- 
tion between  himself  and  the  defendant  from  which  the  rights  and 
duties  of  the  respective  parties  arose  ;  he  stated  only  ivhat  he  con- 


PRINCIPLES    OF    COMMON-LAW   PLEADING. 


541 


ceived  to  he  the  legal  effect  of  these  facts.  The  "  issuable  "  facts, 
in  the  contemplation  of  the  common-law  system,  were  not  the  ac- 
tual controlling  facts  as  they  really  occurred,  and  as  they  would 
be  proved  by  the  evidence,  from  which  the  law  derived  the  right 
of  recovery :  they  were  the  legal  aspect  of  those  facts.,  —  not 
strictly  the  bare  conclusions  of  law  themselves  derived  from  the 
circumstances  of  the  case,  but  rather  combinations  of  fact  and 
law,  or  the  facts  with  a  legal  coloring,  and  clothed  with  a  legal 
character.  The  result  was,  that  the  "  issuable  "  facts  as  averred 
in  the  pleading  were  often  purely  fictitious  ;  that  is,  no  such 
events  or  occurrences  as  alleged  ever  took  place,  but  they  were 
represented  as  having  taken  place  in  the  manner  conceived  of  by 
the  law.  The  pleader  of  course  set  forth  his  own  view  of  this 
legal  effect  under  the  peril  of  a  possible  error  in  his  application  of 
the  law  to  his  case  ;  if  a  mistake  was  made  in  properly  conceiving 
of  this  legal  effect,  —  or,  in  other  words,  if  the  facts  established 
by  the  evidence  did  not  correspond  with  his  opinion  as  to  their 
legal  aspe.ct  stated  in  the  declaration, — the  plaintiff's  suit  would 
entirely  fail.^ 


^  In  corroboration  of  these  conclusions, 
I  quote  a  paragrapli  from  a  series  of  ex- 
ceedingly able  articles  upon  the  English 
Judicature  Bill,  which  appeared  in  the 
"  Saturday  Review "  during  tlie  year 
1873,  and  were  correctly  attributed  to  one 
of  the  foremost  English  barristers  as  their 
author.  Wliile  discussing  the  pleading 
which  ought  to  be  introduced,  he  de- 
scribes the  common-law  methods  by  way 
of  contrast,  and,  among  others,  the  follow- 
ing as  one  of  its  features  :  "  The  first 
striking  difference  is  tliis,  that,  on  the 
common-law  plan,  a  plaintiff  is  required 
to  state,  not  the  facts,  but  what  he  con- 
siders to  be  the  legal  effect  of  the  facts. 
If  his  advisers  take  a  wrong  view  of  a 
doubtful  point,  and  make  him  declare,  say, 
for  goods  sold  and  delivered  when  the  real 
facts,  as  proved,  only  make  a  case  of  goods 
bargained  and  sold,  the  unlucky  plaintiff 
is  cast,  not  because  he  is  not  entitled  to 
recover,  but  because  he  has  not  put  his 
case  as  wiselj'  as  he  might  have  done.  In 
practice,  dangers  of  this  kind  are  miti- 
gated, though  by  no  means  invariably 
escaped,  by  inserting  a  multitude  of 
counts,  all  giving  slightly  different  ver- 


sions of  the  same  transaction,  in  order 
that  on  one  or  other  of  them  the  plain- 
tiff" may  be  found  to  have  stated  cor- 
rectly the  legal  effect  of  the  facts.  The 
permission  to  do  this  was  in  fact  a  recog- 
nition of  the  plaintiff's  inherent  right  to 
ask  alternative  relief;  but  it  was  clogged 
by  tlie  absurd  condition  tliat  he  could 
only  do  so  by  resorting  to  the  clumsj'  fic- 
tion of  pretending  to  have  a  number  of 
independent  grounds  of  action,  when  he 
knew  that  he  had  only  one,  but  did  not 
know  exactly  what  the  court  might  con- 
sider the  legal  effect  of  his  facts  to  be. 
This  was  not  only  unscientific  and  irra- 
tional, but,  in  some  cases,  it  has  led  to 
enormous  expense  by  compelling  a  plain- 
tiff'to  declare  on,  and  a  defendant  to  plead 
to,  scores  of  fictitiously  differing  counts, 
when  there  was  only  one  matter  in  dis- 
pute between  them.  We  do  not  suppose 
that  the  greatest  zealot  among  special 
pleaders  would  say  that  such  a  queer 
scheme  as  this  is  preferable  to  one  under 
which  the  plaintiff'  states  the  facts  on 
which  he  founds  his  claim,  and  asks  for 
such  relief  as  their  legal  effect  may  entitle 
him  to."     "  Saturday  Review,"  April  12, 


642  CIVIL  remedies:;. 

§  512.  The  extent  of  tliese  fictitious  allegations  in  [)learling,  and 
their  inlluenee  npon  the  form  and  growth  of  legal  doctrines  at 
large,  are  exhibited  in  a  remarkable  manner  by  the  history  of  the 
action  of  assumpsit,  and  its  effect  in  originating  and  developing 
the  doctrine  of  implied  promises  and  contracts.  At  an  early  day, 
the  action  of  debt  was  the  only  one  by  which  to  recover  for  the 
breach  of  an  unsealed  contract ;  but  the  defendant  was  permitted 
to  "  wage  his  law,"  and  by  that  means  to  greatly  embarrass,  if 
not  to  defeat,  the  plaintiff's  recovery.  To  obviate  this  difficulty, 
the  action  of  assumpsit  was  at  length  invented.  The  gist  of  this 
action  was  the  defendant's  promise  ;  the  distinctive  averment  of 
the  declaration  was  the  promise,  of  course  express  in  form,  and 
so  indispensable  was  it,  that,  if  the  allegation  was  omitted,  judg- 
ment would  be  arrested,  or  reversed  on  error,  even  after  verdict 
in  the  plaintiff's  favor.  The  promise  was  stated  to  have  been 
express,  and  in  fact  no  form  of  common-law  action  provided  for  a 
recovery  upon  an  implied  promise ;  in  every  case  of  assumpsit, 
either  general  or  special,  on  the  common  counts  or  otherwise,  the 
defendant  was  represented  as  having  expressl}^  promised.  For  a 
considerable  period  of  time  after  the  invention  of  assumpsit,  un- 
doubtedly the  contracts  enforced  by  its  means  were  all  express, 
so  that  the  averment  of  the  declaration  accorded  with  the  actual 
transaction  between  the  parties,  as  shown  by  the  evidence.  In 
the  course  of  time,  lw)wever,  cases  were  brought  before  the  courts, 
in  which  the  right  of  action  on  the  one  hand,  and  tlie  liability  to 
pay  on  the  other,  depended  upon  a  moral  and  equitable  duty  of 
the  defendant,  arising,  not  from  any  promise  made  by  him,  but 
from  the  acts,  circumstances,  and  relations  existing  between  him 
and  the  plaintiff.  The  courts  were  thus  placed  in  a  dilemma. 
The  obligation  of  the  defendant  and  the  right  of  the  plaintiff 
were  founded  upon  the  plainest  principles  of  equity  and  justice, 
and  to  deny  their  existence  was  impossible.  Still,  there  was  no 
action  directly  appropriate  for  their  enforcement.  None  of  the 
actions  ex  delicto  could  be  used,  since  there  was  no  tort ;  debt 
was  also  out  of  the  question,  because  the  amount  claimed  w^as  un- 
liquidated damages;  even  assumpsit  was  not  applicable,  for  there 

1873,  vol.  35,  p.  472.     In  the  face  of  this  be  as  fictitious  as  many  of  its  ordinary 

most  accurate  description  of  coinnion-lavv  allegations, — one   of  i\\e  Jictions   which 

ploa<ling  in  its  essence,  tiie  assertion  that  make  up   so  large  a  part  of  the  system 

it  requires  a  statement  of  the  actual  facts  itself, 
constituting  the  cause  of  action  is  seen  to 


PRINCIPLES    OF    COMMON-LAW    PLEADING.  543 

was  no  promise.  In  tliis  emergency  the  English  judges  were  true  to 
their  traditions,  and  to  all  their  modes  of  thought.  Instead  of  in- 
venting a  new  action,  and  applying  it  to  the  new  class  of  facts  and 
circumstances,  they  reversed  the  order,  and  applied  the  facts  and 
circumstances  to  the  already  existing  actions.  They  fell  back  upon 
their  invariable  resoui'ce,  the  use  of  fictions  ;  but  went  farther  than 
ever  before  or  since  ;  and,  instead  of  inventing  a  fictitious  element 
in  the  action,  they  actually  added  a  fictitious  feature  to  the  facts 
and  circum.stances  from  which  the  legal  right  and  duty  arose. 
They  selected  the  existing  action  of  assumpsit  as  the  one  to  be 
employed  in  such  classes  of  cases  ;  and  since  that  action  is  based 
upon  a  promise,  and  since  the  declaration  must  invariably  allege 
a  promise  to  have  been  made,  the  early  judges,  instead  of  relax- 
ing this  requirement  of  pleading,  actually  added  the  fictitious 
feature  of  a  promise  which  had  never  been  made  to  the  facts 
which  constituted  the  defendant's  liability.  In  other  words,  the 
courts  invented  the  notion  of  an  implied  promise,  in  order  that 
the  cases  of  liability  and  duty  resulting  from  certain  acts,  omis- 
sions, or  relations  where  there  had  been  no  promise,  might  be 
brought  within  the  action  of  assumpsit,  and  be  tried  and  deter- 
mined by  its  means.  There  is  no  more  singular  and  iustructive 
incident  than  this  in  the  whole  history  of  the  English  law,  and  it 
has  a  most  direct  and  important  connection  with  the  practical 
rules  of  pleading  under  the  reformed  procedure  of  the  codes. 
We  see  that  the  notion  of  an  implied  promise  as  the  ground  of 
recovery  in  these  cases  of  moral  and  equitable  duty  did  not  exist 
prior  to  and  independent  of  the  action  which  was  selected  as  the 
proj)er  instrument  for  its  enforcement ;  on  the  contrary,  the  ac- 
tion already  existed  the  distinguishing  feature  of  which  was  the 
allegation  of  a  promise  made  by  the  defendant,  and  a  fictitious  or 
"  implied  "  promise  was  invented  and  superadded  to  the  actual 
facts  constituting  the  defendant's  liability,  for  the  simj)le  puipose 
of  bringing  his  case  within  the  operation  of  that  action  and  its 
formal  averment.^ 

1  It  would  be  both  interesting  and  in-  excursion.  I  quote,  however,  the  conclu- 
structive  to  trace  this  doctrine  of  impUed  sions  reached  by  Judge  Metcalf  in  his  ex- 
promises  through  tlie  wliole  series  of  cases,  ceedingly  able  work  upon  Contracts,  as  an " 
from  its  first  suggestion  as  a  fiction  of  autliority  for  the  position  taken  in  the 
pleading  until  it  became  firmly  incorpo-  text.  After  an  analysis  of  numerous  early 
rated  into  the  general  theory  of  contracts  ;  cases,  he  says  :  "  As  there  will  be  no  ocea- 
but  my  limits  will  not  permit  such  an  sion  to  advert  hereafter  to   the  fictions 


544 


CIVIL    REMEDIES. 


§  518.  Having  thus  described  the  three  types  of  pleading  in 
existence  when  the  reformed  procedure  was  inaugurated,  I  now 
proceed  to  examine  tlie  system  introduced  by  that  procedure 
itself.  In  pursuing  this  investigation,  I  shall  endeavor,  first,  to 
ascertain  the  essential  and  general  principles  upon  which  it  is 
founded  ;  secondly,  to  determine  the  manner  in  which  the  plain- 
tiff sliould  s(!t  foi'th  the  affirmative  subject-matter  of  tlie  action 
in  his  complaint  or  petition  ;  and  thirdly,  to  apply  the  results 
thus  reached  to  the  most  important  and  common  instances  of 
action  and  remedy.  Although  I  shall  aim  at  a  close  conformity 
with  the  true  spirit  and  intent  of  the  statutory  legislation,  yet 
this  intent  will  be  sought  for  in  the  decided  cases  Avhich  have 
given  a  judicial  interpretation  to  the  codes.  It  must  be  conceded 
at  the  outset  that  there  is  an  irreconcilable  conflict  between  two 
classes  of  decisions,  not  only  in  mere  matters  of  detail,  but  in 


adopted  in  setting  forth  the  plaintiff 's 
chiim  in  declarations  in  the  action  of  as- 
sumpsit, it  may  not  he  amiss  to  present  a 
succinct  view  of  those  fictions,  and  of  the 
reasons  on  which  thev  are  founded.  The 
usual  action  on  a  simple  contract  in  old 
times  was  debt.  The  declaration  in  that 
actron  averred  in  substance  that  the  de- 
fendant owed  the  plaintiff,  and  thereupon 
an  action  had  accrued,  &c.  No  promise 
was  alleged,  for  no  promise  was  necessary. 
But  the  defendant  wns  allowed  to  wage 
his  law.  'J'o  avoid  this  wager  of  law,  a 
new  form  of  action  was  devised,  to  wit, 
the  action  of  assumpsit,  in  which  a  prom- 
ise of  the  defendant  was  alleged,  and  was 
indispensable.  A  declaration  which  did 
not  aver  such  jiromise  was  insufficient 
even  after  verdict ;  and  the  law  is  the 
same  at  this  day.  The  promise  declared 
on  is  always  taken  to  be  express.  In 
pleading,  there  is  no  such  thing  as  an  im- 
plied promise.  l>ut  as  no  new  rule  of  evi- 
dence was  required  in  order  to  support  the 
new  action  of  assumjjsit,  it  being  necessary 
only  to  prove  a  debt,  as  was  necessary 
when  the  action  was  debt,  thfe  fictitious 
doctrine  of  an  im])liod  promise  was  intro- 
duced ;  and  for  the  sake  of  legal  con- 
formity, it  was  held,  when  the  defendant's 
legal  liability  was  proved,  that  the  law 
presumed  that  he  had  jiromised  to  do 
what  the  law  made  him  liable  to  do.  .  .  . 
A  single  example  will  illustrate  these  two 


fictions  [the  author  had  described  the 
kindred  fiction  of  an  (implied)  request  al- 
leged to  have  been  made].  A  husband  is 
bound  by  law  to  support  his  wife  ;  and  if 
he  wrongfully  discard  her,  &ny  person 
may  furnish  support  to  her,  and  recover 
pay  therefor  of  the  husband.  In  the  ac- 
tion of  debt,  there  woulil  be- no  necessity 
to  allege  a  promise  in  such  a  case.  But 
the  husband  might  wage  his  law,  and  de- 
fraud the  plaintiff.  In  the  action  of  as- 
sumpsit, the  furnishing  of  the  supplies 
must  be  alleged  to  have  been  by  the 
plaintiff  at  the  husband's  request,  and  a 
promise  of  the  husband  to  pay  must  also 
be  alleged.  But  proof  of  the  actual  facts 
supports  both  these  allegations.  'I'he 
husband  being  in  law  liable  to  pay  is  hi'ld 
to  have  (impliedly)  made  both  the  request 
and  the  promise."  Metcalf  on  Contracts, 
pp.  203,  204.  This  origin  of  the  implied 
promise,  of  its  invention  as  a  fiction  in 
order  to  bring  the  case  within  the  ojjcra- 
tion  of  "assumpsit,"  throws  a  strong 
light  upon  tiie  question,  whether,  in  an 
action  to  enforce  such  a  liability  under  the 
codes,  the  plaintiff  should,  in  addition  to 
the  actual  facts  from  which  the  defendant's 
liability  arises,  also  allege  a  promise  to 
have  been  made  by  him.  The  promise 
was  simi>ly  a  formal  incident  of  the  par- 
ticular action  in  the  old  system,  and  is 
certaiidy  no  more  than  such  an  incident 
in  the  new. 


GENERAL    PRINCIPLES    OF    PLEADING.  545 

their  whole  course  of  reasoning,  in  the  premises  which  they 
assume,  and  in  the  conclusions  which  they  draw  therefrom.  But 
this  conflict  was,  in  by  far  the  greater  part  of  the  States,  confined 
to  the  earlier  periods  of  the  reform,  and  has  virtually  disappeared. 
.There  is  a  substantial  agreement  among  the  courts  in  respect  to 
the  general  principles  which  they  have  finally  adopted:  whatever 
differences  now  exist  arise  in  the  process  of  applying  these  funda- 
mental doctrines  to  particular  cases.  The  confusion  which  ac- 
tually prevails  to  a  very  great  extent  in  several  of  the  States 
results  not  from  any  uncertainty  either  in  the  general  principles 
or  in  the  more  subordinate  rules,  but  from  an  entire  ignorance  or 
disregard  of  them  by  pleaders,  and  from  a  neglect  to  enforce 
them  by  the  judges. 

§  514.  Before  entering  upon  the  matter  thus  outlined  a  pre- 
liminary question  suggests  itself,  upon  the  answer  to  which  much 
of  the  succeeding  discussion  must  turn.  This  question  involves 
the  true  relations  between  the  doctrines  and  rules  of  pleading 
enacted  by  the  codes  and  those  which  existed  previously  as  parts 
of  the  common  law  and  the  equity  jurisprudence,  and  may  be 
stated  as  follows :  Are  the  doctrines  and  rules  contained  in  the 
statute  to  be  regarded  as  the  sole  guides  in  pleading  under  the 
reformed  procedure  ?  or  are  the  ancient  methods  still  controlling, 
except  when  inconsistent  with  some  express  provisions  of  the 
later  legislation  ?  In  answering  this  inquiry,  the  tw^o  schools  of 
interpretation  so  often  mentioned  again  appear,  and  the  differ- 
ence between  them  is  the  same  as  that  already  described  under  a 
somewhat  altered  shape.  It  is  plain  that  the  position  taken  by 
the  courts,  in  answering  the  question  here  suggested,  must  to  a 
very  great  extent  influence  the  whole  body  of  practical  rules 
which  they  adopt  in  reference  to  pleading  as  well  as  to  all  the 
other  features  of  the  civil  action.  According  to  one  theory,  these 
doctrines  and  rules  of  the  common  law  and  of  equity  still  remaiii, 
although  changed  in  many  particulars  b}^  the  reform  legislation  : 
the  pleader  must  first  recur  to  them,  and  must  then  examine 
how  far  their  requirements  have  been  abrogated  or  altered  by  the 
statute  ;  in  a  word,  the  legislation  is  purely  amendatory,  and  is 
not  reconstructive.  According  to  the  other  theory,  these  doctrines 
and  rules  of  the  common  law  and  of  equity  do  not  exist  at  all  as 
authoritative  and  controlling,  —  that  is,  as  controlling  because 
rules  of  the  common  law  or  of  equity.     The  general  principles 

35 


546  CIVIL   REMEDIES. 

and  fundamental  requirements  of  the  codes  have  been  substituted 
in  tlicir  place,  completely  abrogating  them,  and  constituted  by 
the  legislature  as  the  only  sources  of  authority  to  the  bench  and 
the  bar  in  shaping  the  details  of  the  reformed  procedure.  If  any 
particidar  doctrine  or  rule  which  formerly  prevailed  is  also  found 
existing  to-day,  it  so  exists  not  because  it  is  a  part  of- the  common 
law  or  of  the  equity  system,  but  l)ecause  it  is  either  express]}'  or 
impliedly  contained  in  and  enacted  by  the  reformatory  statute. 
When,  therefore,  in  discussing  and  interpreting  such  a  doctrine,  a 
resort  is  had  to  the  former  methods  for  aid,  the  reference  is,  not 
to  obtain  authority,  but  to  find  an  analogy  or  explanation.  In 
other  words,  the  system  introduced  by  the  codes  is  regarded  as 
complete  in  itself,  entirely  displacing  the  a^ncient  modes.  In 
several  particulars,  however,  its  doctrines  and  rules  are  either 
identical  with  or  closely  resemble  those  which  existed  before ; 
and,  in  their  judicial  construction,  recourse  must  be  had  by  way 
of  explanation  and  analogy  merely  to  these  original  forms,  but 
no  such  recourse  is  to  be  had  for  the  purpose  of  obtaining  the 
authority  for  any  proposed  measure  or  practical  regulation  con- 
nected with  the  pleading  under  the  new  procedure. 

§  515.  During  the  earlier  periods  of  the  present  sj^stem,  there 
was  an  evident  disposition  on  the  paut  of  some  judges  and  courts 
to  adopt  the  former  of  these  two  views,  and  to  hold  that  the  old 
methods,  rules,  and  requisites  of  the  common  law  and  of  equity, 
are  still  applicable  in  substance  when  not  inconsistent  with  the 
provisions  of  the  statute  ;  or,  in  other  words,  that  they  had  been 
supplanted  only  so  far  as  such  inconsistency  extends.^  The 
second  theory  has,  however,  been  generally  if  not  universally 
adopted  as  the  true  interpretation  to  be  put  upon  the  language 
of  the  codes,  and  as  the  starting-point  in  the  work  of  construct- 
ing a  systejn  of  practical  rules  for  pleading.  The  pi'oposition,  as 
stated  in  the  foregoing  i^aragraph,  has  been  expressly  announced 
in  well-considered  judgments;  in  the  vast  majority  of  instances, 
however,  it  has  rather  been  assumed  and  impliedl}-  contained 
in  the  decision  of  the  court,  yet  none  the  less  passed  upon  and 
afifirmcd.     It  may  now,  I  think,  be  regarded  as  the  established 

1  See  Howard  i\  Tiffany,  3  Sandf.  695  ;  Davis,  6    How.    Pr.   401;    Houghton   v. 

Fry  V.   I^ennett,  5  Sandf.  54 ;  McMastcr  Townsend,     8     How.     Pr.     447 ;    Boyce 

V.  Booth,  4  How.  Pr.  427;  Rochester  Gity  v.  Brown,  7  Barb.  80;  Knowles  v.  Gee,  8 

Banki'.  Suy(him,  5  How.  Pr.  216  ;  Wooden  Barb.  300;    Bank  of  Genesee  v.  Patchin 

V.  Waffle,  6  How.  Pr.  145  ;  Buddington  o.  Bank,  13  N.  Y.  30y,  313. 


GENERAL   PRINCIPLES    OF   PLEADING.  547 

doctrine,  that  the  code  in  each  of  the  States  is  the  only  source  of 
authority  from  which  rules  of  pleading  may  be  drawn,  that  its 
methods  have  completely  supplanted  those  which  preceded  it,  so 
that  the  latter  can  no  longer  be  appealed  to  as  possessing  of  them- 
selves any  force  and  authority.^ 

§  516.  Tlte  general  and  essential  principles  of  pleading.  I  shall 
now  proceed  to  gather  from  the  text  of  the  codes,  as  interpreted 
by  the  most  authoritative  decisions,  and  to  state  in  order,  the 
comparatively  few  general  and  essential  principles  of  pleading 
introduced  by  the  reformed  procedure,  which  constitute  the 
foundation  of  its  simple,  natural,  and  scientific  as  well  as 
practical  system.  These  essential  principles  apply  to  certain 
classes  of  ansAvers  in  addition  to  all  complaints  or  petitions,  al- 
though from  the  nature  of  the  two  pleadings  they  find  their 
fullest  and  highest  expression  in  the  latter.  Whenever  the 
answer  is  simply  in  the  form  of  denial,  whether  general  or 
specific,  it  is  of  course  governed  by  rules  applicable  to  it  alone. 
But  so  far  as  the  answer  contains  defences  of  new  matter,  and 
a  fortiori  so  far  as  it  contains  a  counterclaim,  or  set-off,  or  the 
bfijsis  of  any  affirmative  relief,  its  allegations  and  those  of  the 
complaint  or  petition  must  conform  to  the  same  requirements, 
must  follow  the  same  method.  The  general  and  essential  prin- 
ciples of  the  reformed  pleading  now  to  be  discussed,  illustrated, 
and  arranged  in  an  orderly  manner,  apply  therefore  alike  to  the 
plaintiff's  statement  of  his  case  for  relief,  and  to  the  defendant's 
statement  of  affirmative  matter,  either  by  way  of  defences  in  con- 
fession and  avoidance,  or  by  way  of  cross  demands  against  any 
parties  to  the  action. 

§  517.  The  fundamental  and  most  important  principle  of  the 
reformed  pleading,  the  one  from  which  all  the  others  are  deduced 
as  necessary  corollaries,  is  the  following :  The  material  facts 
which  constitute  the  ground  of  relief,  or  the  defence  of  new 
matter  (confession  and  avoidance),  should  be  averred  as  they 
actually  existed  or  took  place,  and  not  the  legal  effect  or  aspect 
of  those  facts,  and  not  the  mere  evidence  or  probative  matter  by 
which  their  existence  is  established.^     I  have  purposely  refrained 

1  Trustees  v.  Odlin,  8  Ohio  St.  293  ;  ^  People  v.  Ryder,  12  N.  Y.  433  437  ; 
Jolly  w.  Terre  Haute,  &c.  Co.,  9  Ind.  421 ;  Hill  v.  Barrett,  14  B.  Mon.  83  ;  Green  v. 
Wliite  V.  Joy,  13  N.  Y.  83,  90;  People  v.  Palmer,  15  Cal.  411,  414;  Rogers  v.  Mil- 
Ryder,  12  N.  Y.  433,  438,  439  ;  Ahern  v.  waukee,  13  Wise.  610,  611 ;  Bird  v.  iVIayer, 
Collins,  39  Mo.  145,  150.  8  Wise.  362,  367 ;  Horn  v.  Ludington,  28 


548 


CIVIL    REMFDIES. 


from   using-   the   coiiinion   formula,    "  facts   which  constitute  the 
cause  of  action,^'  in  order  that  the  principle  might  be  expressed 


Wise.  81,  83  ;  Groves  v.  Tallman,  8  Nev. 
178;  Pier  u.   Heiiiriclioffen,  52  Mo.   333, 
335;   AVills  v.   Wills,    34  Ind.   106,    107; 
De  Graw  ?•.  Elmore,  50  X.  Y.  1  ;  Cowin  v. 
Toole,  31    Iowa,   513,  516;  Singleton   v. 
Scott,  11   Iowa,  58'j ;  Bowen  v.  Aubrey, 
22  Cal.  566,  56'J ;  Pfiffner  v.  Krapfel,  28 
Iowa,  27,  34;  White  v.  Lyons,  42  Cal. 
27y,  282 ;  Louisville,  &c.  Co.  v.  Murphy, 
9  Bush,  522,  527  ;  Gates  v.  Salmon,  46 
Cal.  361,   379;    King  v.  Enterprise   Ins. 
Co.,  45  Ind.  43,   55 ;  Lytle  v.  Lytle.   37 
Intl.  281  ;  Van  Schaick  v.  Farrow,  25  Ind. 
310;  Chicago,  &c.  R.  R.  v.  North  West. 
Un.   Co.,  38  Iowa,  377,  382;  Bowen   v. 
Emmerson,  3  Oreg.  452 ;  Cline  v.  Cline, 
3  Oreg.    355,  358 ;    Gates    v.    Gray,   66 
N.  C.  442,  443 ;  Farron  v.  Sherwood,  17 
N.  y .  227  ;  Coryell  v.  Cain,  16  Cal.  567, 571 . 
I  quote  from  some  of  these  cases  in  which 
the  general  principle  is  fully  stated,  in 
order  that  the  exact  views  of  the  courts 
may  be  shown,  as  well  as  the  conclusions 
drawn  from  them  in  the  text.     The  opin- 
ion of  Marvin  J.  in   People  v.  R^der  is 
exceedingly  instructive,  and  covers  most 
of  the  subordinate  questions  that  arise  in 
connection  with  the  general  topic.     He 
said  (p.  437) :  "  This  rule   [§   142  of  the 
New  York  code]  is  substantially  as  it  ex- 
isted, prior  to  its  enactment,  in  actions  at 
law.     Chittj'  says  :  '  In  general,  whatever 
circumstances  are  necessary  to  constitute 
the  cause  of  complaint  or  ground  of  de- 
fence must  be  stated  in  the  pleadings,  and 
all  be}"ond  is  surplusage  ;  facts  only  are 
to  be  stated,  and  not  argunients  or  infer- 
ences or  matter  of  law,  in  which  respect 
pleadings  at  law  appear  to  differ  material- 
ly from  those  in  equity.'     (1  Ch.  PI.  245.) 
At  page  266  he  says :  '  It  is  a  most  im- 
portant principle  of  the  law  of  pleading, 
that  in  alleging  the  fa«t  it  is  unnecessary 
to  state  such   circumstances   as  tend  to 
prove  the  truth  of  it.     The  dry  allegation 
of  the  fact,  without  detailing  a  variety  of 
minute    circumstances    which    constitute 
the  evidence  f)f  it,  will  suffice.     The  ob- 
ject of  the  pleadings  is  to  arrive  at  a  spe- 
cific issue  upon  a  given  and  material  fact; 
and  that  is  attained  although  the  evidence 
of  such  fact  to  be  laid  before  a  jury  be  not 


specifically  developed  in  the  pleadings.' 
I  have  supposed  it  safe,  and  a  compliance 
with  the  code,  to  state  the  facts  constitut- 
ing tlie  cause  of  action   substantially  in 
the   same   manner   in    which    they   were 
stated  in  the  old  .system  in  a  special  count. 
By  that  system  the  legal  issuable   facts 
were  to  be  stated,  and  the  evidence  by 
which  those  facts  were  to  be  established 
was  to  be  brought  forward  upon  the  trial. 
This  i)osition  will  not  embrace  what  were 
known  as  the  common  counts.  ...  It  has 
been  supposed  that  a  wider  latitude  shf)uld 
be  allowed  in  equity  pleading,  and  that 
evidence   may  to  some  extent  be  incor- 
porated in  the  statement.     The  rule  of 
the  code  is  broad  (yiough  for  all  cases ; 
and  it  permits  a  statement  of  facts  and 
circumstances  as  contradistinguished  from 
the  evidence  which  is  to  establish  those 
facts.     But  in  all  equity  cases  the  facts 
may  be  more    numerous,   more   compli- 
cated, more  involved  ;    and  the  pleader 
may  state  all  these  facts  in  a  legal  and 
concise  form  which  constitute  the  cause 
of  action,  and  entitle  him  to  relief.     The 
rule  touching  the  statement  of  facts  con- 
stituting the  cause  of  action  is  tlie  same 
in  all  cases ;  and  the  rules  by  which  the 
sufficiency  of  pleadings  is   to   be  deter- 
nfined  are  prescribed  by  the  code."     How 
far  the  positions  quoted  from  Mr.  Chitty 
are   correct  is   shown   in   the   preceding 
paragraphs  of  this  section.     No  more  ac- 
curate exposition  of  the  fundamental  doc- 
trine announced  by  the  codes  is  to  be  found 
in  the  books  than  the  foregoing  opinion 
of  Mr.  Justice  ^larvin.     In  several  of  the 
cases  to  be  cited  the  discussion  has  been 
confined   to   legal    actions,   and    general 
statements  have  been  made  in  reference 
to  the  "material"    or   "issuable"   facts 
which  are  plainly  erroneous  when  applied 
to  suits  brought  for  equitable  relief.     Tlie 
principle  as  formulated   by   Mr.   Justice 
Marvin  embraces  both  species  of  actions, 
and  brings  them  both  within  the  purview 
of  the   statutory   provision.      In   Hill   v. 
Barrett  the  same  fundamental  principle 
was  stated  by  Marshall  J.  in  a  most  clear 
and  admirable  manner  (p.  84) : "  Although 
the  Cede  of  Practice  has  abolished  not 


GENERAL    PRINCIPLES    OF   PLEADING. 


649 


in  its  most  comprehensive  manner,  and  might  include  equitable 
as  well  as  legal  actions.     As  will  be  shown  in  the  sequel,  it  is 


only  the  pre-existing  forms  of  action,  but 
also  tlie  pre-existing  forms  of  pleading, 
and  has  declared  that  henceforth  the 
forms  of  pleadings  and  the  rules  by  which 
their  sufficiency  is  to  be  determined  are 
those  prescribed  in  the  code  itself,  it 
adopts  what  has  always  been  a  cardinal 
rule  with  respect  to  the  allegation  of  the 
plaintiff,  now  called  a  petition,  that  it 
must  contain  a  statement  of  the  tacts  con- 
stituting the  plaintiff's  cause  of  action. 
While  the  code  contains  a  very  few  ad- 
ditional rules  with  respect  to  the  mode  or 
manner  of  alleging  the  facts  relied  upon 
as  constituting  a  cause  of  action,  it  does 
not,  and  could  not,  particularize  the  facts 
necessary  to  be  stated,  nor  give  any  af- 
firmative rule  more  special  or  more  in- 
structive than  that  which  requires  that 
the  petition  shall  contain  the  facts  con- 
stituting the  plaintiff's  cause  of  action." 
[Here  follows  the  passage  quoted  in  the 
text  of  §  108,  sM/jra  to  and  including  the 
words  "  that  the  declaration  must  state 
the  facts  which  constitute  the  plaintiff's 
cause  of  action  ;  "  after  which  the  opinion 
proceeds  as  follows  :]  "  In  adopting  this 
fundamental  rule  of  pleading,  the  code 
must  be  considered  as  adopting  also  the 
prevailing  and  authoritative  expositions 
of  it  as  understood  at  the  time,  except  so 
far  as  the  code  itself  either  expressly  or 
by  necessary  implication  requires  facts  to 
be  stated  which  need  not  before  have 
been  stated,  or  dispenses  with  the  state- 
ment of  facts  formerly  deemed  necessary. 
The  express  dispensations  apply  rather  to 
the  forms  of  statement  than  to  the  facts 
to  be  stated.  The  implied  dispensations 
grow  mainly  out  of  the  reduction  of  all 
actions  to  one  form.  Tlie  requisites  of 
additional  facts  may  be  implied  from  the 
abolition  of  that  rule  which  had  formerly 
made  it  sufficient,  and  indeed  proper,  to 
state  facts  nccordinfj  to  their  legal  ejfect,  in- 
stead ofstatinrj  them  as  thetj  actually  occurred, 
while  the  code  seems  to  require  by  the 
rule  that  they  shall  be  stated  in  ordinary 
language."  In  Green  v.  Palmer,  the  Su- 
preme Court  of  California  laid  down  the 
rules  in  respect  to  the  kinds  of  facts  which 
should  be  averred,  and  defined  the  nature 


of  "  material  "  or  "  issuable  "  facts  in  a 
most  exhaustive  manner.  From  the 
elaborate  opinion  of  Field  C.  J.  the  fol- 
lowing extracts  are  taken  (p.  414)  : 
"First  rule.  Facts  only  must  be  stated. 
This  means  the  facts  as  contradistin- 
guished from  the  law,  from  argument, 
from  hypothesis,  and  from  evidence  of 
the  facts.  Tlie  facts  must  be  carefully 
distinguished  from  the  evidence  of  the 
facts.  The  criterion  to  distinguish  the 
facts  from  the  evidence  is,  —  Second  rule. 
Those  facts,  and  those  alone,  must  be 
stated  which  constitute  the  cause  of  ac- 
tion, the  defence,  or  the  reply.  There- 
fore (1)  each  party  must  allege  every 
fact  which  he  is  required  to  prove,  and 
will  be  precluded  from  proving  any  fact 
not  alleged.  Tlie  plaintiff,  on  his  part, 
must  allege  all  that  he  will  have  to 
prove  to  maintain  his  action  ;  the  defend- 
ant, on  his  part,  all  that  he  must  prove  to 
defeat  the  plaintiff 's  title  after  the  com- 
plaint is  admitted  or  proved.  (2)  He 
must  allege  nothing  affirmatively  which 
he  is  not  required  to  prove.  This  is  some- 
times put  in  the  following  form  ;  viz., 
'  that  those  facts,  and  those  only,  should 
be  stated  which  the  party  would  be  re- 
quired to  prove.'  But  this  is  inaccurate, 
since  negative  allegations  are  frequently 
necessary,  and  they  are  not  to  be  proved. 
The  rule  applies,  however,  to  all  affirma- 
tive allegations,  and,  thus  applied,  is  uni- 
versal. Every  fact  essential  to  the  claim 
or  defence  should  be  stated.  If  this  part 
of  the  rule  is  violated,  the  adverse  party 
may  demur.  In  the  second  place,  nothing 
should  be  stated  which  is  not  essential  to 
the  claim  or  defence  ;  or,  in  other  words, 
none  but  'issuable'  facts  should  be 
stated.  If  this  part  of  the  rule  be  vio- 
lated, the  adverse  party  may  move  to 
strike  out  the  unessential  parts.  An  un- 
essential, or  what  is  the  same  thing,  an 
immaterial  allegation,  is  one  which  can  be 
stricken  from  the  pleading  without  leav- 
ing it  insufficient,  and,  of  course,  need  not 
be  proved  or  disproved.  The  following 
question  will  determine  in  every  case 
whether  an  allegation  be  material  :  Can 
it  be  made  the  subject  of  a  material  issue  ? 


550 


CIVIL    REMEDIES. 


only  in  legal  actions  that  the  material  or  issuable  facts  which  are 
to  be    averred   "  constitute  the   cause  of  action  "  in  the  strict 


In  otlier  words,  If  denied,  will  tlie  failure 
to  prove  it  decide  the  case  in  whole  or  in 
part  ?     If  it  will  not,  then  the  fact  alleged 
is  not  material  (issuable)  ;  it  is  not  one  of 
tiiose  which  constitute  the   cause  of  ac- 
tion, defence,  or  reply."  This  opinion  was 
adopted,  and  the  mode  of  distinguishing 
"  material  "  or  "  issuable  "  allegations  was 
approved  by  the  Supreme  Court  of  Ore- 
gon in  Cline  v.  Cline,  o  Oreg.  355,  358, 
350.     The  criterion  thus  proposed  by  Mr. 
Chief  Justice  Field  is  perfect  in  its  appli- 
cation to  legal  actions,  but  is  hardly  broad 
enough  to  include  all  cases  where  equita- 
ble relief  is  demanded,  unless  it  was  in- 
tended to  embrace  such  cases  in  the  lan- 
guage "  decide  the  case  in  whole  or  in 
part."    If   sucli   was   the    intention,   the 
manner  of  stating  the  rule  is  somewhat 
obscure,  and  it  clearly  needs  amplification 
and  explanation.     I  return  to  this  question 
in  a  subsequent  paragraph  of  the  text. 
Horn    V.  Luding;on,   28   Wise.  81,  is  an 
instructive  decision   in    reference   to  the 
proper  allegations  to  be  made  in  an  action 
for  equitable  relief.    The  action  was  equi- 
table.     The    complaint  averred   that   in 
1870,  and  for  a  long  time  prior  thereto, 
the  defendant  L.  held  in  his  own  name  the 
legal  title  to  certain  property  described,  for 
the  benefit  of,  and  in  trust  for,  the  plaintiff 
and  three  others,  defendants,  who,  with 
the  plaintiff,  were  the   cestuis  que  trustent, 
and  were  entitled  thereto  in  equal  shares 
as  tenants  in  common.     It  then   alleged 
acts  of  L.  in  violation  of  his  duty,  and  in 
denial  of  the  trust.     It  prayed  an  execu- 
tion of  the  trust  by  a  conversance  of  the 
property  to  the  beneficiaries ;  or  if  that 
had    been    made   impossible,    then    by   a 
division  of  the   proceeds   in  L.'s  hands. 
The  defendant    L.   moved  to  make  this 
complaint  more  definite  and  certain  in  its 
averments  in  respect  to  the  existence  of  the 
trust.     This  motion  having  been  denied 
in  tlie  court  below,  L.  appealed  ;  and  the 
opinion  of  the  Supreme  Court  was  pro- 
nounced by  Lyon  J.,  who,  after  quoting 
the  provisions  of  the  code  concerning  the 
complaint,  proceeds   (p.  83) :  "  Here  the 
cause  of  action  is  the  alleged  trust,  the 
same   as   in   a  money   demand    on   con- 
tract the  debt  is  the  cause  of  action.     If 


there  be  no  debt,  there  can  be  no  recov- 
ery ;  and  in   this   action,  if  there  is  no 
trust,  the  plaintiff"  cannot  recover.     The 
cause   of  action  —  that   is,    the   trust  — 
is    stated    in    the    complaint  ;     but    the 
facts    constituting   such  cause  of   action 
—  namely,    the    facts    which    make    L. 
a  trustee  of  the  plaintiff  and    others  in 
respect  to  the  property  in  controversy  — 
are  not  therein  stated.     We  think,  there- 
fore, that  the  plaintiff  should  have  been 
required    to    make   his   complaint    more 
definite  and  certain  in  this  particular  by 
stating  facts  which  will  show  that  L.  holds 
the  title  to  the  property  as  such  trustee." 
Some    observations    upon    this    opinion 
seem  to   be  necessary.     If   its  reasoning 
be   correct,  it   leads  to   most   important 
consequences.     If  the  cause  of  action  is 
stated,  but  not  the  "  facts   constituting 
the  cause  of  action,"  then  the  complaint 
would  have  been  demurrable,  since  the 
requirement  is  positive   that   such  facts 
must  be  alleged,  and  their  absence  from 
the  pleading  is  the  principal  ground  of 
demurrer.     But  it  cannot  for  a  moment 
be  claimed  that  this  complaint  would  be 
bad  on  demurrer.     The  fundamental  er- 
ror of  the  opinion  is  the  assumption  tliat 
the  trust  is  the  cause  of  action.     The  trust 
is  simply  one  fact  going  to  constitute  the 
cause  of  action.     The   allegation   of  the 
trust  in  tliis  case  was  the  averment  of  a 
material  fact  in  its  broadest  manner  and 
form- and  in  its  ler/al  sense  or  aspect,  as 
was  done  in  the  common-law  pleadings. 
But  the  suit  being  equitable,  and  the  code 
demanding  a  statement  of  the  material 
facts  as  the}'  occurred,  and  not  merely  an 
allegation    of  their  legal   view  or  effect, 
this  complaint  was   clearly  defective   in 
this   respect.      While    the    decision    was, 
therefore,  right,  the   reasoning  is   quite 
misleading ;  at  all  events,  it  is  opposed  to 
the  course  of  argument  pursued  in  the 
great  majority  of  reported  cases.     It  in- 
volves,  however,   the    doctrine,   that   in 
equitable  suits  the  material  facts  neces- 
sary to  be  averred  maj-  be  quite  different 
in  their  nature  from  those  which  must  be 
alleged  in  legal  actions.     In  Pier  v.  Ilein- 
richoffcn,  52  Mo.  333,  which  was  an   ac- 
tion against  the  indorsers  of  a  note,  the 


GENERAL   PRINCIPLES   OP   PLEADING. 


551 


sense  of  the   term ;    while  in   equitable    actions    facts   may   be 
material,  and  must  be  alleged,  which,  while  they  form  the  basis  of 


petition  allegerl  a  demand  of  payment  at 
maturity,  and  notice  of  non-pa^-ment 
given  to  the  defendants.  At  tiie  trial 
the  plahitiff  proposed  to  prove  facts  ex- 
cusing such  demand  and  notice;  and,  the 
evidence  being  rejected,  a  verdict  was  ren- 
dered against  liim.  This  ruling  was  sus- 
tained by  the  Supreme  Court.  Ewing  J., 
after  saying  that  the  plaintiff's  mode  of 
pleading  would  have  been  proper  under 
the  common-law  system,  proceeds  (p. 
335)  ;  "  As  the  vice  of  the  old  system  of 
pleading  was  its  prolixity,  its  general 
averments  and  general  issues,  and  the 
delay  knd  expense  inseparable  from  it, 
the  new  system  whicli  we  have  adopted 
has  little  claim  to  be  considered  a  reform, 
unless  it  avoids  sucli  defects,  and  furnishes 
rules  by  which  the  great  object  of  all 
pleadings  is  attained ;  viz.,  to  arrive  at 
a  material,  certain,  and  single  issue. 
Hence  the  great  improvement  of  our  code 
consists  in  requiring  the  pleadings  to  con- 
tain a  plain  and  concise  statement  of  the 
facts  constltutinr/  the  cause  of  action,  or 
matter  of  defence.  Facts,  and  not  evi- 
dence nor  conclusions  of  law,  must  be 
stated.  Every  fact  which  the  plaintiff 
must  prove  to  maintain  his  suit  is  consti- 
tutive in  the  sense  of  the  code."  The 
petition  in  this  case,  it  was  held,  should 
have  averred  the  matters  of  excuse  sought 
to  be  proved.  The  description  here  given 
of  issuable  or  "  constitutive  "  facts  is  ap- 
propriate to  legal  actions  only,  and  must 
be  modified  in  its  terms  in  order  to  meet 
the  characteristic  features  of  many  equi- 
table suits.  Wills  i'.  Wills,  34  Ind.  106, 
is  also  very  instructive,  and  contains  a 
principle  of  wide  application  which  dis- 
tinguishes the  present  from  the  former 
theory  of  pleading.  The  action  was 
brought  to  recover  for  the  use  and  oc- 
cupation of  certain  land,  and  the  com- 
plaint was  claimed  to  be  radically 
defective.  Downey  J.  said  (p.  107)  : 
"  The  objection  to  the  complaint  is  that 
it  contains  no  allegation  that  the  defend- 
ant ever  promised  to  pay,  or  ever  ngretd 
to  pay,  or  that  he  was  indebted  to  the 
plaintiff.  To  this  the  appellee  answers 
that  it  is  not  necessary  to  use  any  word 


that  shows  an  undertaking,  agreement,  or 
promise  on  the  part  of  the  defendant  to 
pay  rent,  for  none  ever  existed  ;  that  the 
complaint  states  facts,  and,  technically 
speaking,  the  law  raises  the  implied  prom- 
ise to  pay ;  that  the  right  of  action,  in 
fact,  does  not  stand  upon  any  contract  or 
agreement,  but  arises  from  principles  of 
equity  and  good  conscience.  .  .  .  This  is 
not  a  question  relating  to  the  right  to  re- 
cover rent  on  the  one  hand,  or  the  liability 
to  pay  it  on  the  other ;  but  it  is  a  question 
of  pleading.  The  question  is  this  :  Is  it 
allowable,  and  is  it  sufficient,  for  the  party 
to  set  forth  the  facts  from  which  a  prom- 
ise or  indebtedness  may  be  implied  ?  or 
must  he  allege  the  promise  or  indebted- 
ness, and  then  support  it  at  the  trial  by 
proof  of  the  circumstances^  "  The  judge 
here  cites  Gould  on  Pleading,  p.  48,  §  19, 
to  the  effect  that  a  promise  must  always 
be  averred  in  pleading  in  assumpsit,  and 
in  debt  the  declaration  alleges  that  the  de- 
fendant is  indebted,  and  proceeds  :  "  The 
complaint  in  this  case  is  sid  generis.  We 
cannot  classify  it.  It  is  not  in  assumpsit, 
for  it  alleges  no  promise  ;  it  is  not  in  debt, 
for  it  alleges  no  indebtedness.  But,  after 
some  examination  of  cases  decided  under 
codes  similar  to  our  own,  we  have  come 
to  the  conclusion,  that,  tested  by  the  code, 
the  complaint  may  be  sufficient.  It  would 
seem  that,  contrary  to  the  rule  at  the  com- 
mon law,  a  party  in  a  suit  for  a  money  de 
mand  on  a  contract  like  this,  where  the 
contract  is  implied,  may  allege  the  facts 
from  which  the  law  implies  the  promise  ; 
and  it  will  be  sufficient  without  alleging 
the  promise  or  an  indebtedness  "  He 
adds  that  it  is  better,  however,  in  all  cases 
to  allege  a  promise.  "  It  is  always  good 
pleading  to  state  the  legal  effect  of  the 
contract,  whether  it  be  written  or  oral." 
This  opinion  is  a  striking  illustration  of 
the  pertinacity  with  whicii  courts  have 
clung  to  the  ancient  notions  of  actions 
and  pleading  that  have  been  entirely  ab- 
rogated by  the  reform  legislation.  Al- 
though reacliing  a  correct  decision,  this 
conclusion  was  evidently  forced  upon  the 
judges,  and  was  accepted  by  them,  as  it 
were,  under  protest.     It  actually  appeared 


552 


CIVIL   REMEDIES. 


or  modify  tlie  remedy  demanded,  do  not  i)roperly  eonstitiite  the 
cause  of  action.     This  distinction  will  be  fully  developed  in  sub- 


strange  to  tlieni  tliat  a  complaint,  drawn 
inexact  fonforinity  witii  tlie  rcquirciiicnts 
of  tlie  new  [iroccdure,  should  not  be  a  dec- 
laration in  assumpsit  or  in  debt,  as  though 
the  code  was  not  enacted  to  produce  this 
very  result.  The  remark  with  which  the 
quotation  ends  was  undoubtedly  true  while 
the  common-law  methods  {)revailed  ;  but 
it  is  exactly  contrary  to  the  whole  spirit 
and  intent  of  the  present  system  :  it  means 
that  a  party,  instead  of  stating  the  actual 
facts  as  tliey  really  occurred  from  which 
the  liability  called  an  implied  contract 
arises,  should  state  the  legal  effect  of  those 
facts,  and  should  thus  aver  a  fiction,  as 
was  required  by  the  former  rules  of  plead- 
ing. In  De  Graw  i'.  Elmore,  50  N.  Y.  1, 
which  was  an  action  to  recover  back  the 
price  paid  to  defendant  for  certain  stocks 
alleged  to  have  been  fraudulently  sold  to 
the  plaintiff,  the  comjjlaint  averred  the 
fraud,  the  jdaintiff's  election  to  rescind,  a 
tender  of  the  stocks,  and  a  demand  of  the 
price.  In  stating  the  original  sale,  it 
alleged  that  the  purchase-price  had  been 
paid  in  money.  On  the  trial,  however,  it 
appeared  that  the  plaintiff  did  not  pay 
any  money,  but  that  defendant  owed  him 
.$16,000  on  a  prior  account  growing  out  of 
contract,  and  that  the  price  of  tlie  stocks, 
$y,000,  was  paid  by  giving  the  defendant 
credit  for  so  much  on  this  existing  indebt- 
edness. Upon  this  evidence  a  motion  for 
a  nonsuit  was  denied,  and  the  plaintiffliad 
a  verdict,  which  was  set  aside  by  the  Court 
of  Appeals.  The  opinion  of  the  court,  by 
Grover  J.,  first  states  the  settled  rules  of 
law  as  to  the  remedy  of  a  party  who  has 
been  induced  by  fraud  to  enter  into  a 
contract :  he  may  affirm  the  contract,  and 
bring  an  action  lor  his  damages  ;  or  he 
may  rescind,  —  restore  to  the  other  party 
all  he  lias  received,  and  recover  all  he  has 
parted  with.  In  this  case  the  plaintiff 
elected  to  rescind,  and  to  recover  back 
the  money  })aid.  "  It  turns  out  that  there 
was  no  money  paid,  but  only  a  credit  given 
on  a  former  debt ;  and  the  court  below 
lield  that  lie  could  recover  that  amount 
if  the  other  facts  were  proved.  Tins 
was  error.  The  contract  being  rescinded, 
the  plaintiff'  was  restored  to  his  original 


position  and  right.  That  right  was  to  re- 
cover the  account  in  an  ac:tion  upon  con- 
tract. Upon  the  judgment  so  recovered 
the  defendant  could  neither  be  arrested 
nor  imprisoned.  The  credit  could  not  be 
regarded  as  so  much  money  paid  for  the 
purposes  of  this  action,  and,  in  that  way, 
a  judgment  recovered  which  could  be 
enforced  by  imprisonment.  It  is  insisted, 
that,  under  the  code,  forms  of  action  are 
abolished,  and  that  the  facts  showing  the 
right  of  action  need  only  be  stated.  This 
is  correct ;  but  it  does  not  aid  the  plain- 
tiff. The  facts  are  not  stated.  The 
plaintiff'  had  a  cause  of  action  against  the 
defendant  upon  an  account  for  money  ad- 
vanced for  him.  Instead  of  stating  this 
cause  of  action,  the  allegation  is  in  sub- 
stance that  he  paid  him  money  as  the 
price  of  stocks  fraudulently  sold  by  the 
defendant  to  the  plaintiff,  which  contract 
has  been  rescinded  by  the  plaintiff',  and  a 
return  of  the  money  demanded,  which  has 
been  refused  by  the  defendant.  These 
causes  of  action  differ  in  substance.  The 
former  is  upon  contract,  the  latter  for 
tort ;  and  the  law  will  not  permit  a  re- 
covery upon  the  latter  by  showing  a  right 
to  recover  upon  the  former."  In  Pfiffner 
I'.  Krapfel,  28  Iowa,  27,  34,  Cole  J.  very 
truly  said :  "  Our  system  of  pleading  is 
essentially  a  fact  system,  intended  to  re- 
quire the  parties  in  judicial  proceedings  to 
state  the  facts  of  their  claims,  and  advise 
the  opposite  party  of  the  true  nature  and 
object  of  the  suit.  It  is  against  the  spirit 
and  plain  intent  of  our  code  to  allow  par- 
ties to  claim  as  fruits  of  their  litigation 
that  which  was  not  by  the  fair  and  obvious 
import  of  the  pleadings  put  in  issue  and 
litigated  between  them."  In  the  very  re- 
cent case  of  Louisville,  &c.  Canal  Co.  v. 
Murphy,  9  Bush,  ;j22,  527,  the  Kentucky 
Court  of  Appeals  stated  the  general  doc- 
trine in  the  following  manner  :  "  While 
the  ancient  forms  of  pleading  are  abol- 
ished, still  every  fact  necessary  to  enable 
the  plaintiff  in  the  action  to  recover  must 
be  alleged,  and  every  essential  averment 
required  to  make  a  declaration  good  at  the 
common  law  upon  general  demurrer  must 
be  made  in  the  petition.     The  facts  must 


GENERAL   PRINCIPLES   OF   PLEADING.  553 

sequent  paragraphs  which  discuss  the  mode  of  pleading  in 
equitable  actions.  This. single  and  simple  principle  lies  at  the 
foundation  of  the  entire  reformed  method  introduced  by  the 
codes.  When  fully  comprehended,  it  will  be  found  to  involve  all 
the  other  requisites  of  the  system.  It  distinguishes  the  new 
pleading  from  each  of  the  three  types  which  formerly  prevailed, 
and  which  have  already  been  described  ;  from  the  modes  used 
in  the  equity  and  the  civil-law  courts,  by  wholly  dispensing  with 
any  statements  of  probative  matter,  and  by  limiting  the  aver- 
ments to  the  fundamental  facts  which  constitute  the  cause  of 
action  or  the  grounds  of  relief;  and  from  the  mode  used  in  the 
common-law  courts,  by  discarding  all  fictions,  all  technicalities, 
all  prescribed  formulas,  and  by  requiring  the  material  facts  to  be 
alleged  as  they'  actually  existed,  and  not  their  legal  effect,  and 
still  less  the  legal  conclusions  inferred  from  them.  In  discussing 
this  fundamental  principle,  and  developing  from  it  the  subordi- 
nate doctrines  and  practical  rules  which  are  involved  in  its  genr 
eral  terms,  its  component  elements  must  be  separately  examined, 
and  the  full  import  of  each  must  be  carefully  ascertained.  This 
analysis  will  lead  me  (1)  to  define  the  legal  meaning  of  the 
term  "  cause  of  action  "  as  used  in  the  codes,  and  to  point  out 
the  somewhat  different  senses  which  must  be  given  to  the  phrase 
Avhen  it  is  applied  to  legal  and  to  equitable  actions ;  (2)  to  deter- 
mine the  nature  of  the  facts  which  "  constitute  the  cause  of 
action  "  in  each  of  its  two  significations,  and  in  this,  connection 
to  point  out  the  difference  between  the  "  issuable  facts  "  averred 

be  alleged  so  as  to  enable  the  opposite  tioned,  and  the  promise,  if  express  ;  or  if 
party  to  know  what  is  meant  to  be  proved,  tliere  was  noexpress  promise,  then  thefacts 
and  also  that  an  issue  may  be  framed  in  from  which  a  promise  upon  a  sufficient  con- 
regard  to  the  subject-matter  of  dispute,  sideration  would  be  implied  by  the  law ; 
and  to  enable  tlie  court  to  pronounce  the  and  also  the  facts  showing  that  the  time 
law  upon  the  facts  stated.  The  dry  al-  for  payment  had  expired,  or  that  the  con- 
legation  of  tlie  facts  in  the  petition,  with-  tract  had  been  broken  in  some  other  man- 
out  setting  forth  tiie  evidence  of  the  truth  ner.  In  giving  this  construction  to  the 
of  the  statements  made,  is  all  that  is  re-  code,  the  court  declared  that  the  common 
quired."  The  Supreme  Court  of  Oregon,  counts  in  assumpsit,  as  used  in  the  old 
in  Bowen  v.  Enunerson,  3  Oreg.  45*2,  ap-  procedure,  were  not  in  accordance  with 
pliedthe  general  principle  to  the  complaint  these  principles,  and  could  not  be  resorted 
in  an  action  for  money  due  upon  simple  to.  Similar  quotations  migiit  be  almost 
contract,  and  stated  tlie  essential  aver-  indefinitely  multiplied  ;  but  these  are  suf- 
ments  of  such  a  pleading.  Tlie  facts  should  ficient  to  show  the  positions  assumed  by 
be  alleged  showing  that  a  contract  exist-  the  courts  in  announcing  the  most  im- 
ed  between  the  parties  which  had  been  portant  doctrine  of  the  reformed  plead- 
broken  ;  the  consideration  should  be  men-  ing. 


554  CIVIL    REMEDIES. 

in  leoal  actions  and  the  facts  material  to  the  remedy  but  not 
strictly  "issuable"  sometimes  necessary  to  be  alleged  in  eciui- 
table  actions,  and  to  explain  tlie  distinction  in  this  respect  which 
inheres  in  the  modes  of  pleading  employed  in  these  two  classes 
of  suits ;  and  (3)  to  discuss  the  requirement  tliat  these  material 
facts  should  be  stated  as  they  actually  occurred  or  existed,  and 
not  their  legal  effect  and  meaning,  and  to  display  its  full  force 
and  significance.  The  result  of  this  analysis  will  then  be  applied 
in  develoi^ing  the  various  general  rules  wliich  make  up  the 
reformed  system  of  pleading. 

§  518.  The  term  "  cause  of  action  "  is  employed  by  the  fram- 
ers  of  the  codes  in  several  different  connections ;  but  it  must  be 
assumed  that  in  each  of  them  it  was  intended  to  have  the  same 
signification,  that,  wherever  used,  it  was  designed  to  describe  the 
same  elements  or  features  of  the  judicial  proceeding  called  an 
action.  The  courts  have  never,  so  far  as  I  have  been  able  to 
discover,  attempted  any  thorough  and  exhaustive  discussion  of 
the  phrase,  and  determined  its  meaning  ])y  any  general  formula 
or  definition ;  and  little  or  no  aid  will  therefore  be  obtained  in 
this  inquiry  from  judicial  interpretation.  The  few  decided  cases 
which  venture  upon  a  partial  description  were  quoted  in  the 
last  preceding  section.  In  another  instance,  not  there  referred 
to,  in  which  the  plaintiff  alleged  that  the  legal  title  to  certain 
lands  was  vested  in  the  defendant,  but  that  these  lands  were 
held  by  him  in  trust  for  the  plaintiff,  and  demanded  an  execution 
of  the  trust  by  conveyance,  &c.,  the  cause  of  action  was  decided 
to  be  "  the  trust ; "  the  court  declaring  that  in  every  money 
demand  on  contract  "  the  debt "  is  the  cause  of  action,  and  hold- 
ing, that,  in  the  case  before  them,  the  cause  of  action  itself — the 
trust  —  was  stated  in  the  complaint,  but  that  the  facts  consti- 
tuting it  were  not  averred.^ 

§519.  The  true  signification  of  the  term  "cause  of  action" 
was  carefully  examined  and  determined  in  the  second  section  of 
the  present  chapter ;  and  I  shall  not  repeat  the  course  of  discus- 
sion there  pursued,  but  shall  simply  recapitulate  the  conclusions 
which  were  reached.  Every  action  is  based  upon  some  primary 
right  held  by  the  plaintiff,  and  upon  a  duty  resting  upon  the 
defendant  corresponding  to  such  right.  By  means  of  a  wrong- 
ful act  or  omission  of  the  defendant,  this  primary  right  and  this 
1  Horn  V.  Ludington,  28  Wise.  81,  83. 


GENERAL   PRINCIPLES    OP   PLEADING.  555 

duty  are  invaded  and  broken ;  and  there  immediately  arises  from 
the  breach  a  new  remedial  right  of  the  plaintiff,  and  a  new 
remedial  duty  of  the  defendant.  Finally,  such  remedial  right 
and  duty  are  consummated  and  satisfied  by  the  remedy  which  is 
obtained  through  means  of  the  action,  and  which  is  its  object. 
Now,  it  is  very  plain,  that,  using  the  words  according  to  their 
natural  import  and  according  to  their  technical  legal  import,  the 
"  cause  of  action  "  is  what  gives  rise  to  the  remedial  right,  or  the 
right  of  remedy,  which  is  evidently  the  same  as  the  term  "  right 
of  action  "  frequently  used  by  judges  and  text-writers.  This 
remedial  right,  or  right  of  action,  does  not  arise  from  the  wrong- 
ful act  or  omission  of  the  defendant  —  the  delict  —  alone,  nor 
from  the  plaintiff's  primary  right,  and  the  defendant's  corre- 
sponding primary  duty  alone,  but  from  these  two  elements  taken 
together.  The  "cause  of  action,"  therefore,  must  always  con- 
sist of  two  factors,  (1)  the  plaintiff's  primary  right  and  the 
defendant's  corresponding  primary  duty,  whatever  be  the  subject 
to  which  they  relate,  person,  character,  property,  or  contract ; 
and  (2)  the  delict,  or  wrongful  act  or  omission  of  the  defendant, 
by  which  the  primary  right  and  duty  have  been  violated.  Every 
action  when  analyzed  will  be  found  to  contain  these  two  separate 
and  distinct  elements,  and  in  combination  they  constitute  the 
"  cause  of  action."  The  primary  right  and  duty  by  themselves 
are  not  the  cause  of  action,  because  when  existing  by  themselves, 
unbroken  by  the  defendant's  wrong,  they  do  not  give  rise  to  any 
action.  For  this  reason,  that  definition  is  clearly  erroneous  which 
pronounced  the  "  debt  "  in  an  action  on  contract,  or  the  "  trust " 
in  a  suit  to  enforce  a  trust,  to  be  the  "  cause  of  action."  Much 
less  can  the  delict  or  wrong  by  itself  be  the  cause  of  action, 
because,  without  the  primary  right  and  duty  of  the  parties  to  act 
upon,  it  does  not  create  any  right  of  action  or  remedial  right  as 
I  have  used  the  phrase.  It  is  very  clear  from  this  analysis  that 
the  "  cause  of  action  "  mentioned  in  the  codes  includes  and  con- 
sists of  these  two  branches  or  elements  in  combination,  —  the 
primar}'-  right  and  duty  of  the  respective  parties,  and  the  wrong- 
ful act  or  omission  by  which  they  are  violated  or  broken. 

§  620,  The  first  of  these  branches  must  always,  from  the 
nature  of  the  case,  be  a  conclusion  of  law.  The  law  b}^  its  com- 
mands creates  a  rule  applicable  to  certain  facts  and  circumstances, 
by  the  operation  of  which,  when  these  facts  and  circumstances 


566  CIVIL   REMEDIES. 

• 

exist,  a  right  arises,  and  is  held  })y  the  phiintiff,  and  a  correspond- 
ing duty  arises  and  devolves  upon  the  defendant.  While  tliis 
first  factor  of  the  ''cause  of  action"  is  therefore  always  a  con- 
clusion or  proposition  of  law,  and  results  from  the  command  of 
the  supreme  power  in  the  State  as  its  cause,  it  necessarily  pre- 
supposes the  existence  of  certain  facts  and  events  as  the  occasion 
of  its  coming  into  operation.  A  complete  and  exhaustive  exhi- 
bition of  it  would  thus  require  a  statement  of  the  legal  rule 
itself  applicable  to  the  given  condition  of  facts  and  circum- 
stances, and  of  the  primary  right  and  duty  arising  therefrom  ; 
and  also  an  allegation  that  the  facts  and  circumstances  them- 
selves to  which  the  rule  applies,  and  on  the  occasion  of  which  the 
right  and  duty  arise,  do  actually  exist  or  have  existed.  If  this 
principle  were  adopted  in  pleading,  every  cause  of  action  would 
demand  a  mingled  averment  of  legal  rules,  of  the  facts  and 
events  to  which  the}^  apply,  and  of  the  rights  and  duties  result- 
ing from  the  operation  of  the  given  rule  upon  the  existing  facts. 
In  the  second  branch  of  the  cause  of  action,  there  is,  on  the 
other  hand,  no  element  whatever  of  the  law :  it  is  simply  and 
wholly  matter  of  fact.  It  consists  entirely  of  affirmative  acts 
wrongfully  done,  or  of  negative  omissions  wrongfully  suffered  by 
the  defendant;  and  its  statement  in  a  pleading  can  be  nothing 
more  than  a  narrative  of  such  acts  or  omissions.  A  primary 
right  existed  in  favor  of  the  plaintiff,  and  a  corresponding  duty 
devolved  uj)on  the  defendant,  of  which  an  integral  element  is  a 
legal  rule :  this  right  and  this  duty,  if  positive,  called  upon  the 
defendant  to  do  some  act  towards  the  plaintiff,  the  nature 
of  which  depended  upon  the  nature  of  the  right  and  duty ; 
if  negative,  they  called  upon  the  defendant  to  forbear  from 
doing  some  act  towards  the  plaintiff,  the  nature  of  which  was 
determined  in  like  manner.  In  the  one  case,  the  defendant's 
delict  consists  in  his  not  doing  the  act  which  his  duty  obliged 
him  to  do ;  and  in  the  other  case,  in  doing  the  act  which  his 
duty  forbade  him  to  do.  In  both  instances,  therefore,  the 
wrong  which  constitutes  the  second  factor  or  branch  of  the 
cause  of  action  is  a  fact  more  or  less  complex,  and  not  either 
wholly  or  partially  a  legal  conclusion  or  rule. 

§  521.  Such  being  the  general  nature  and  signification  of  the 
term  "  cause  of  action,"  its  different  phases  of  meaning,  when 
applied  either  to  legal  or  to  equitable  actions,  will  next  be  pointed 


GENERAL   PRINCIPLES    OF   PLEADING.  557 

out  and  described.  These  differences  do  not  extend  to  its  essen- 
tial elements ;  they  are  wholly  formal,  and  they  result  entirely 
from  the  external  differences  sometimes  subsisting  between  legal 
and  equitable  primary  rights  and  between  legal  and  equitable 
remedies.  In  a  legal  cause  of  action,  the  primary  right  of  the 
2)laintiff  and  duty  of  the  defendant  are  generally  simple  in  their 
nature  as  contradistinguished  from  complex  ;  that  is,  they  call  for 
some  single,  simple,  and  complete  act  or  forbearance  on  the  part 
of  the  defendant ;  and  when  broken  by  the  defendant's  delict, 
the  remedial  right  and  duty  which  arise  always  demand  a  single, 
simple,  and  complete  act  to  be  done  by  the  defendant;  namel}^ 
either  the  payment  of  a  sum  of  money  as  debt  or  damages,  or  the 
delivery  of  possession  of  a  specific  chattel,  or  the  delivery  of  pos- 
session of  a  specific  tract  of  land,  which  constitute  the  only 
remedies  that  can  be  obtained  by  a  legal  action.  It  follows, 
therefore,  from  the  nature  of  a  legal  primary  right  and  duty  and 
of  a  legal  remedy,  that  the  cause  of  action  in  a  legal  suit  is 
always  simple,  and  can  be  stated,  and  must  necessarily  be  stated, 
in  such  a  manner,  that  the  remedial  right,  if  it  exists  at  all,  will 
be  shown  at  once  in  its  completeness  and  certainty.  Further- 
more, the  legal  primary  right  must  necessarily  depend  upon  a  few 
facts ;  and  these  being  all  indispensable  to  its  existence,  the 
absence  of  even  a-  single  one  will  entirely  invalidate  the  whole 
cause  of  action,  and  will  show  that  no  remedial  right  whatsoever 
has  arisen. 

§  522.  The  foregoing  description  does  not  appl}^  to  equitable 
actions  generall}'-,  although  it  undoubtedly  does  to  some.  In 
very  many,  and  indeed  in  most,  equitable  causes  of  action,  not 
merely  the  facts  which  are  the  occasion  of  the  right,  but  the 
primary  rights  and  duties  themselves  of  the  parties,  are  complex: 
it  cannot  be  said  of  them  that  they  must  either  wholly  exist,  or 
must  be  entirely  denied ;  they  do  not,  in  other  words,  demand  a 
single  specific  act  or  omission  on  the  part  of  the  defendant,  but  a 
series,  and  often  a  very  complicated  series,  of  acts  and  omissions. 
In  determining  these  primary  rights  and  duties  of  the  respective 
parties  to  an  equitable  suit,  there  must  frequently  be  a  settle- 
ment and  adjustment  of  opposing  claims  ;  one  must  be  modified 
by  another ;  and,  as  the  result,  a  -collection  of  rights  and  duties  is 
established  inhering  in  each  of  the  litigants,  and  embracing  a 
great   variety    of  particulars.     In    certain    classes   of    equitable 


668  CIVIL   REMEDIES. 

actions,  it  cannot  be  properly  said  that  any  wrong  or  delict  has 
been  committed  by  the  defendant,  or  any  violation  of  the  plain- 
tiff's primary  rights,  unless  an  ignorance  of  those  rights  by  all  the 
parties,  and  a  consequent  hesitation  on  the  part  of  all  to  act,  can 
be  deemed  a  technical  wrong.  These  classes  of  suits  are  prose- 
cuted, not  because  there  has  been  any  denial  of  right  or  duty, 
but  because  in  the  absence  of  an  accurate  knowledge  of  their 
rights,  or  of  power  to  arrange  and  adjust  them  by  voluntary  pro- 
ceedings, an  appeal  to  the  courts  becomes  necessary  in  order  to 
solve  the  problem  or  to  accomplish  the  adjustment.  An  action 
brouglit  to  construe  a  will  may  be  mentioned  as  an  illustration  of 
the  first  class,  and  the  ordinary  suit  for  partition  as  an  example 
of  the  second.  Again  :  the  i-emedies  furnished  by  equity  are  sel- 
dom the  single,  simple,  and  complete  awards  of  pecuniary  sums, 
or  of  possession  of  lands  or  of  chattels,  as  is  the  case  with  all 
legal  judgments.  They  are  complex  and  involved ;  they  often 
consist  in  an  adjustment  and  award  of  partial  reliefs  to  each  of 
the  parties;  they  may  provide  for  future  and  contingent  emer- 
gencies ;  and  they  are  sometimes  nothing  more  than  an  authori- 
tative determination  by  the  court  of  the  primary  rights  them- 
selves belonging  to  the  plaintiffs  and  the  defendants.  This 
sketch  shows  ver}^  plainly  that  an  equitable  cause  of  action  is 
often  very  different,  in  its  external  form  at  least,  from  any  legal 
cause  of  action  ;  and  although  the  same  general  principle  of 
pleading  applies  to  each,  yet  it  must  undergo  some  modification 
in  that  application.  The  facts  constituting  the  cause  of  action 
are  to  be  stated  in  an  equitable  as  well  as  in  a  legal  action ;  but 
facts  do  not  constitute  the  equitable  cause  of  action  in  the  same 
sense  nor  in  the  same  manner  that  they  constitute  the  legal  cause 
of  action. 

§  52o.  The  result  thus  reached  leads  to  the  second  subdivision 
of  the  present  inquiry  ;  namely,  the  nature  of  the  facts  which  con- 
stitute the  cause  of  action  when  that  term  is  applied  both  to  legal 
and  to  equitable  suits.  As  has  already  been  remarked,  the  first 
branch  or  division  of  the  cause  of  action  contains  three  distinct 
elements,  two  of  them  legal,  and  the  other  of  fact ;  the  second 
branch  consists  wholly  of  facts  ;  while  the  remedial  right  which 
flows  from  the  two  is  of  course  a  conclusion  of  law.  If  the  theory 
of  pleading  required  that  all  these  elements  should  be  expressed, 
then  the  plaintiff's  complaint  or  petition  would  always  comprise 


GENERAL   PRINCIPLES    OF   PLEADING.  559 

the  following  averments  :  (1)  The  rule  of  law  applicable  to  certain 
facts  from  which  his  primary  right  and  the  defendant's  primary 
duty  arise  ;  (2)  the  existence  of  the  facts  to  which  such  rule  ap- 
plies, and  which  are  the  occasion  of  the  right  and  duty;  (8)  the 
primary  right  and  duty  themselves  which  spring  from  the  operation 
of  such  rule  upon  the  given  facts,  —  these  three  subdivisions  form- 
ing the  first  branch  of  the  "  cause  of  action  ;  "  (4)  the  facts  consti- 
tuting the  violation  of  the  primary  right  and  duty  ;  that  is,  the 
wrongful  acts  or  omissions  of  the  defendant,  ^ —  this  statement  be- 
ing the  second  branch  of  the  "  cause  of  action  ;  "  (5)  the  remedial 
right  held  by  the  plaintiff,  and  the  remedial  duty  devolving  upon 
the  defendant,  which  result  from  the  "  cause  of  action,"  and  are 
wholly  conclusions  of  law.  In  this  manner  every  thing  which  en- 
ters into  the  plaintiff's  case,  fact  and  law,  would  be  spread  upon 
the  record.  A  bill  of  complaint  in  chancery,  prior  to  any  statu- 
tory modification,  was  substantially  constructed  upon  this  plan, 
although  the  various  subdivisions  were  not  so  logically  separated 
and  arranged.  The  mode  of  pleading  which  prevailed  in  the 
superior  courts  of  Scotland  seems  to  have  been  in  complete  con- 
formity Avith  this  theory. 

§  524.  The  reformed  sj^stem,  following  in  this  respect  the  com- 
mon-law method,  dispenses  with  several  of  these  elements  which 
make  up  the  plaintiff's  entire  ground  for  relief:  it  wholly  rejects 
all  the  subdivisions  which  are  mere  legal  rules  or  conclusions,  and 
admits  only  those  that  consist  of  the  facts  to  which  the  legal  rules 
apply,  and  which  are  the  occasion  whence  the  conclusions  arise. 
It  assumes  that  the  courts  and  the  parties  are  familiar  with  all  the' 
doctrines  and  recpiirements  of  the  law  applicable  to  every  con- 
ceivable condition  of  facts  and  circumstances,  so  that,  when  a  cer- 
tain condition  of  facts  and  circumstances  is  presented  to  them, 
they  will  at  once  perceive  and  know  what  are  the  primary  and  the 
remedial  rights  and  duties  of  both  the  litigants ;  and  this  knowl- 
edge being  complete  and  perfect,  it  is  a  useless  incumbrance  of  the 
record  to  spread  out  upon  it  the  legal  propositions  and  inferences 
with  which  every  one  is  assumed  to  be  accj^uainted.  A  complaint 
or  petition,  therefore,  drawn  in  accordance  with  this  theory,  must 
omit(l)  the  legal  rule  which  is  the  direct  cause  of  the  primary 
right  and  duty,  (2)  the  primary  right  and  duty  themselves  which 
are  the  results  of  this  rule  acting  upon  the  given  facts,  and  (3) 
the  remedial  right  and  duty  which  accrue  to  the  plaintiff;  and  it 


660  CIVIL    REMEDIES. 

must  only  state  (1)  the  facts  which  enter  into  the  first  branch  of 
the  cause  of  action  and  are  the  occasion  of  the  primar}'-  right  and 
duty,  and  (2)  the  facts  which  constitute  the  defendant's  wrongful 
act  or  omission,  —  that  is,  the  delict  which  is  the  second  branch 
of  the  cause  of  action.  As  will  be  seen  in  the  sequel,  a  statement 
of  tlie  legal  rule,  or  of  the  primary  legal  right  and  duty  without 
the  facts  to  which  they  apply,  and  which  are  the  occasion  for 
their  existence,  is  insufficient :  it  alleges  no  cause  of  action,  and 
cannot  be  made  the  basis  of  an  issue  ;  while  such  a  statement  in 
addition  to  those  facts  is  surplusage,  and,  if  the  rules  of  pleading 
are  strictly  enforced,  will  be  struck  out  on  motion,  and  will,  at  all 
events,  be  wholly  disregarded.  We  thus  arrive  at  the  first  gen- 
eral doctrine  in  relation  to  the  facts  constituting  the  cause  of 
action;  namely,  the  facts  which  are  among  the  elements  of  the 
cause  of  action,  that  is,  those  which  are  the  occasion  for  the 
primary  right  and  duty  to  arise,  and  those  which  form  the  breach 
of  such  right  and  duty,  must  be  alleged,  to  the  entire  exclusion  of 
tlie  other  elements  that  enter  into  the  cause  of  action,  —  the  legal 
rules,  and  the  legal  rights  and  duties  of  the  parties. 

§  525.  Before  proceeding  to  the  second  general  doctrine,  I 
shall  notice  an  apparent  modification  of  or  departure  from  the 
one  just  announced,  which  occurs  in  a  certain  class  of  actions. 
In  the  very  great  majority  of  instances,  the  complaint  or  petition 
must  narrate  in  an  express  manner  those  facts,  which,  as  I  have 
shown,  form  an  element  of  the  first  branch  or  division  of  the 
cause  of  action,  —  those  facts  to  which  the  general  rule  of  law 
applies  in  order  to  create  the  primary  right  and  duty  of  the 
parties.  In  these  cases,  therefore,  the  pleading  does  actually 
contain,  in  direct  and  positive  terms,  the  allegations  of  two  dis- 
tinct groups  of  facts:  first,  those  which  are  the  occasion  of  the 
primary  right  and  duty  ;  and  secondly,  those  which  are  the  l)reach 
of  such  riglit  and  duty,  —  the  wrong  or  delict.  There  is  nothing 
of  fact  left  to  be  understood  or  assumed.  In  another  class  of 
cases,  however,  the  first  group  of  facts  is  not  expressly  averred  ; 
it  is  omitted ;  it  is  assumed  to  exist  in  the  same  manner  that  the 
legal  rules  are  assumed ;  and  the  complaint  or  petition  actually 
contains  only  those  facts  which  constitute  the  breach,  —  the 
Avrongful  act  or  omission  of  the  defendant.  The  peculiar  class  of 
actions  thus  mentioned  do  not,  however,  depart  from  or  violate 
the  theory  of  pleading  before  described,  but  are  constructed  in 


GENERAL   PRINCIPLES    OP   PLEADING.  561 

exact  conformity  with  it.  The  facts  upon  which  the  primary- 
right  and  duty  of  the  parties  depend  are  omitted,  because  they 
are  in  accordance  with  the  universal  experience  of  mankind,  and 
must  theiiefore  be  presumed  to  exist,  so  that  their  averment,  like 
the  averment  of  legal  rules,  is  unnecessary.  A  simple  and 
familiai-i  illustration  is  the  action  to  recover  damages  for  an  assault 
and  battery.  The  primary  right  of  the  plaintiff  is  the  right  to 
his  own  person,  free  from  molestation  or  interference  by  any  one. 
This  right,  being  a  legal  conclusion,  is  of  course  not  averred.  The 
fact  upon  which  it  depends  is  simply  that  the  plaintiff  is  a  human 
being,  existing  and  possessing  the  common  faculties  and  attri- 
butes of  humanity.  Since  this  fact  conforms  to  the  universal 
experience,  its  averment  in  the  complaint  or  petition  is  needless ; 
it  is  tacitly  assumed ;  and  the  pleading  consists  wholly  in  state- 
ments of  the  wrongful  trespass  committed  by  the  defendant. 
Another  illustration  is  the  action  for  slander  or  libel.  The  facts 
upon  which  the  primary  right  and  duty  of  the  parties  depend  is 
the  existence  of  the  plaintiff  as  a  member  of  society,  and  as  pos- 
sessing a  character  among  his  fellow-men.  Although  the  com- 
mon-law declaration  contained  averments  of  the  plaintiff's 
reputation,  they  are  unnecessary,  and  the  complaint  or  petition 
may  contain  merely  an  account  of  the  defamatory  words  spoken 
or  published  by  the  defendant  and  the  other  elements  of  the 
wrong.  It  may  be  stated  as  a  general  proposition,  that,  in  actions 
brought  for  injuries  to  the  plaintiff's  own  person  or  character, 
the  facts  which  enter  into  the  first  branch  of  the  cause  of  action, 
and  are  the  occasion  whence  the  primary  right  and  duty  of  the 
parties  arise,  need  not  be  expressly  averred ;  they  are  assumed  to 
exist,  and  nothing  but  the  delict  need  be  alleged.  Notwithstand- 
ing this  abridgment,  the  pleading  in  such  cases  is  based  upon 
the  same  theory  and  governed  by  the  same  rules  as  the  pleading 
in  all  other  classes  of  actions. 

§  526.  The  second  of  the  general  doctrines  included  within  the 
principle  under  consideration  is,  that,  in  stating  the  two  required 
groups  of  facts,  those  important  and  substantial  facts  alone  should 
be  alleged  which  either  immediately  form  the  basis  of  the 'primary 
right  and  duty,  or  which  directly  make  tip  the  wrongful  acts  or 
omissions  of  the  defendant,  and  not  the  details  of  probative  mat- 
ter or  particulars  of  evidence  by  which  these  material  elements 
are  to  be  established.     This  doctrine  applies  to  all  classes  of 

36 


562  .  CIVIL   REMEDIES. 

actions,  and  if  strictly  enforced  it  would  render  the  pleadings 
simple,  and  the  legal  issues  at  least  clear,  certain,  and  single. 
The  courts  have  been  unanimous  in  their  announcement  of  the 
rule,  and  the  decisions  already  quoted,  as  well  as  those  to  be 
cited  in  subsequent  paragraphs,  will  show  the  variety  of  circum- 
stances, allegations,  and  issues  to  which  it  has  been  applied. 
There  can  be  no  real  difficulty,  if  the  action  is  legal,  in  distin- 
guishing between  the  facts  which  are  material  and  issuable  and 
should  therefore  be  averred,  and  those  which  are  merely  pro- 
bative or  evidentiary  and  should  be  omitted.  Since  the  legal 
primary  right  and  duty  are  always  simple,  and  demand  from  the 
defendant  the  performance  or  the  omission  of  some  single  and  well- 
defined  act,  they  will  always  depend,  for  their  occasion,  upon  a 
few  j)Ositive,  determined,  and  certain  facts,  all  of  which  are 
necessary  to  their  existence,  so  that  neither  of  these  facts  could 
be  modified,  and  much  less  could  be  omitted,  without  entirely 
defeating  the  right  and  duty,  and  with  them  the  cause  of  action 
itself.  The  same  is  true  of  the  facts  which  make  up  the  defend- 
ant's delict  or  wrong.  In  order,  therefore,  that  any  given  legal 
cause  of  action  should  exist,  in  order  that  any  given  remedial 
right  or  right  of  action  should  arise,  these  determinate,  unchanged, 
and  positive  elements  of  fact  must  all  conspire  to  produce  that 
result,  and  must  be  alleged ;  they  literally  "  constitute "  the 
cause  of  action,  and  form  the  "  material "  or  "  issuable  "  aver- 
ments spoken  of  by  the  courts.  The  subordinate  facts,  on  the 
other  hand,  which  make  up  the  probative  matter  and  the  details 
of  evidence,  may  vary  indefinitely  in  their  nature  ;  and  so  long  as 
they  perform  their  function  of  establishing  the  "  issuable  "  aver- 
ments, the  cause  of  action  will  not  be  affected.  To  illustrate  by 
a  very  familiar  example:  In  an  action  to  recover  damages  for 
the  breach  of  a  written  contract,  the  allegation  that  the  defend- 
ant executed  the  agreement  is  material  and  issuable  ;  it  cannot  be 
modified,  and  much  less  abandoned,  without  destroying  the  whole 
cause  of  action.  Its  denial  raises  a  direct  issue,  to  maintain  or 
disprove  wliich  evidence  can  be  offered.  The  subordinate  pro- 
bative matter  by  which  this  averment  is  established  may  vary 
according  to  the  exigencies  of  the  case,  and  a  resort  to  or  failure 
with  one  method  will  not  prevent  the  use  of  another.  The 
plaintiff'  might  rely  upon  the  defendant's  admissions  that  he  exe- 
cuted the  paper,  or  u^jou  the  testimony  of  a  witness  who  saw  him 


GENERAL   PRINCIPLES   OP   PLEADING.  563 

sign  it,  or  upon  the  opinions  of  persons  who  are  acquainted  with 
his  handwriting,  and  who  testify  that  the  signature  is  his.  One 
or  the  other,  or  even  all,  of  these  means  might  be  resorted  to,  and 
the  material  fact  to  be  proved  would  remain  the  same.  If,  how- 
ever, instead  of  directly  averring  that  the  defendant  executed  the 
written  contract,  the  j)laintiff  should  allege  that  the  defendant 
had  admitted  his  signature  to  be  genuine,  or  that  a  specified  indi- 
vidual asserts  that  he  saw  the  instrument  signed,  or  that  persons 
familiar  with  his  handwriting  declare  the  signature  to  be  his,  it  is 
plain  that  neither  of  these  statements  would  present  a  material 
issue  ;  that  is,  an  issue  upon  which  the  cause  of  action  would  de- 
pend. This  familiar  illustration  covers  the  whole  field  of  legal 
actions.  The  allegations  must  be  of  those  principal,  determinate, 
constitutive  facts,  upon  the  existence  of  which,  as  stated,  the  en- 
tire cause  of  action  rests,  so  that  when  denied  the  issue  thus 
formed  with  each  would  involve  the  whole  remedial  right.  Every 
legal  cause  of  action  will  include  two  or  more  distinct  and  sepa- 
rate facts ;  and  in  order  that  these  facts  may  be  issuable,  the 
failure  to  prove  any  one  of  them  when  denied  must  defeat  a 
recovery.  If  this  fundamental  doctrine  of  the  reformed  pleading 
is  fairly  and  consistently  enforced  in  actual  practice,  the  issues 
presented  for  trial  must  necessarily  be  simple  and  single.  Single- 
ness and  simplicity  of  issues  do  not  require  that  the  cause  should 
contain  but  one  issue  for  the  jury  to  decide,  one  affirmation  and 
denial  the  determination  of  which  disposes  of  the  whole  contro- 
versy. This  result  of  the  common-law  special  j^leading  is  often 
described  by  enthusiastic  admirers  of  the  ancient  system,  but  it 
was  seldom  if  ever  met  with  in  the  actual  administration  of 
justice.  The  issues  are  single  when  each  consists  of  one  and 
only  one  material  fact  asserted  by  the  plaintiif  and  controverted 
by  the  defendant,  of  such  a  nature  that  its  affirmative  decision  is 
essential  to  the  cause  of  action,  while  its  negative  answer  defeats 
a  recovery.  The  reformed  theory  of  pleading  contemplates  and 
makes  provision  for  such  issues  ;  and  if  its  provisions  are  faithfully 
carried  out,  the  disputed  questions  of  fact  would  be  as  sharply 
defined,  and  as  clearly  presented  for  decision  to  juries,  as  can  be 
done  by  any  other  possible  method. 

§  527.  The  discussion  thus  far  of  this  particular  doctrine  has 
been  confined  to  legal  actions ;  are  any  modifications  necessary 
to  be  made  in  its  statement  when  applied  to  equitable  suits  ?  The 


664  CIVIL   REMEDIES. 

differences  in  form  between  legal  causes  of  action  and  remedies 
on  tlie  one  side  and  equitable  causes  of  action  and  reliefs  on  the 
other  have  been  described,  and  need  not  be  repeated.  By  virtue 
of  these  inherent  differences,  the  material  facts  which  must  be 
alleged  in  an  equitable  suit  are  often,  in  their  nature  and  effects, 
quite  unlike  the  "  issuable  "  facts  wliich  constitute  a  legal  cause 
of  action.  In  the  legal  action  the  issuable  facts  are  few  ;  in  the 
equitable  suit  the  material  facts  upon  which  the  relief  depends, 
or  which  influence  and  modify  it,  are  generally  numerous,  and 
often  exceedingly  so :  in  the  former  they  are  simple,  clearly 
defined,  and  certain ;  in  the  latter  they  may  be  and  frequently 
are  complicated,  involved,  contingent,  and  uncertain.  These  are 
mere  differences  of  external  form,  but  there  is  another  much  more 
important,  and  which  more  nearly  affects  their  essential  nature. 
The  legal  cause  of  action  so  completely  rests  for  its  existence 
upon  the  issuable  facts,  that  if  any  one  of  them  when  denied 
fails  to  be  established  by  proof,  the  plaintiff's  entire  recovery  is 
defeated  thereby,  a  result  which  is  recognized  by  all  the  judicial 
decisions  as  involved  in  the  very  definition  of  a  legal  issuable 
fact.  An  equitable  cause  of  action  may  undoubtedly  rest  in  like 
manner  upon  a  given  number  of  determinate  facts.  In  general, 
however,  as  has  already  been  fully  explained,  facts  may  exist 
material  to  the  recovery  in  o,  certain  aspect,  or  in  a  certain  con- 
tingency, or  to  a  certain  extent,  and  which  therefore  enter  into 
the  cause  of  action,  but  which  are  not  indispensable  to  some  kind 
or  measure  of  relief  being  granted  to  the  plaintiff.  These  facts 
if  established  will  determine  the  character,  extent,  and  complete- 
ness of  the  remedy  conferred  by  the  court ;  but  if  they  are  not 
established,  the  remedy  is  not  thereby  wholly  defeated  ;  it  is  only 
in  some  particulars  modified,  limited,  or  abridged.  Since  these 
classes  of  facts  assist  in  determining  the  nature,  amount,  and 
details  of  the  relief  to  be  awarded,  they  in  part  at  least  "  con- 
stitute the  cause  of  action  "  within  the  true  meaning  of  the  term, 
and  must  be  alleged.  While  the  material  facts  of  an  equitable 
cause  of  action  differ  in  the  manner  thus  described  from  the 
issuable  facts  of  a  legal  cause  of  action,  the  single  and  compre- 
hensive principle  of  the  reformed  procedure  embraces  and  con- 
trols both  classes  of  suits.  Mere  evidence,  probative  matter  as 
contradistinguished  from  the  principal  facts  upon  which  the 
remedial  right  is  based,  are  no  more  to  be  sj^read  upon  the  record 


GENERAL  PRINCIPLES   OF   PLEADING.  665 

in  an  equitable  than  in  a  legal  action.  A  distinction  inheres  in 
the  nature  of  the  causes  of  action,  and  from  this  distinction  the 
facts  material  to  the  recovery  in  an  equitable  suit  may  be  numer- 
ous, complicated,  affecting  the  right  of  recovery  partially  instead 
of  wholly,  modifying  rather  than  defeating  the  remedy  if  not 
established;  but  still  they  are  the  material  facts  constituting  the 
cause  of  action,  and  not  mere  details  of  evidentiary  or  probative 
matter. 

§  528.  The  existence  and  necessity  of  this  distinction  between 
the  material  facts  to  be  alleged  in  legal  and  equitable  actions  are 
fully  recognized  and  admitted  by  judicial  opinions  of  the  highest 
authority.^  It  also  prevails,  I  believe,  universally  in  practice. 
]ij  no  judge  has  it  been  more  accurately  and  exhaustively  dis- 
cussed than  by  Mr.  Justice  S.  L.  Selden  in  two  early  cases  which, 
although  without  the  binding  authority  of  precedents,  have  the 
force  of  cogent  and  unanswerable  reasoning. ^  With  the  practical 
conclusions  in  reference  to  the  nature  of  the  material  facts  that 
should  be  averred  in  an  equitable  complaint  or  petition  at  which 
Mr.  Justice  Selden  arrives,  I  entirely  concur ;  his  course  of  argu- 
ment upon  which  those  conclusions  are  based  is  the  same  in  sub- 
stance which  has  been  pursued  in  the  foregoing  paragraphs.  I 
wholly  dissent,  however,  from  his  inference  that  these  results  are 
not  contemplated  by  and  embraced  within  the  single  and  compre- 
hensive principle  announced  by  the  codes,  that  the  facts  con- 
stituting the  cause  of  action,  and  they  alone,  must  be  stated. 
This  inference  does  not  follow  from  his  argument,  nor  from  the 
final  positions  which  he  reaches  ;  it  is  wholly  unnecessary ;  and 
it  has  been  rejected  by  judges  who  have  accepted  and  main- 
tained the  very  doctrines  concerning  the  nature  of  equitable 
pleading  under  the  code  which  he  so  ably  supports.  It  is  only 
by  giving  to  the  phrase  "  facts  constituting  the  cause  of  action  " 
a  narrow  interpretation,  which  it  was  plainly  not  intended  to 
receive,  that  the  material  facts  of  an  equitable  cause  of  action 
can  be  thus  widely  separated  from  the  issuable  facts  of  a  legal 
one.  Both  are  aptly  described  by  the  phrase  which  is  found  in 
all  the  codes.  The  averment  of  issuable  facts  in  one  class  of 
cases,  and  of  the  material  facts  affecting  the  remedy  in  the  other 

1  See  People  v.  Ryder,  12  N.  Y.  433,  -'  Rochester  City  Bank  v.  Suydam, 
437;  Horn  v.  Ludington,  28  Wise.  81,  5  How  Pr.  216;  Wooden  v.  Waffle,  6 
83  ;  White  v.  Lyons,  42  Cal.  279,  282.  How.  Pr.  145. 


666  CIVIL   REMEDIES. 

class,  without  the  details  of  evidence  or  probative  matter  relied 
upon  to  establish  either,  is  a  necessary  consequence  of  the  single 
comprehensive  principle  which  underlies  the  whole  reformed 
system. 

§  529.  The  third  and  last  point  remains  to  be  considered  in 
this  general  discussion.  The  issuable  facts  in  a  legal  action,  and 
the  facts  material  to  the  relief  in  an  equitable  suit,  should  not 
only  be  stated  to  the  complete  exclusion  of  the  law  and  the  evi- 
dence, but  they  should  be  alleged  as  they  actually  existed  or 
occurred,  and  not  their  legal  effect,  force,  or  operation.  This 
conclusion  follows  as  an  evident  corollary  from  the  doctrine  that 
the  rules  of  law  and  the  legal  rights  and  duties  of  the  parties  are 
to  be  assumed,  Avhile  the  facts  only  which  call  these  rules  into 
operation,  and  are  the  occasion  of  the  rights  and  duties,  are  to  be 
spread  upon  the  record.  Every  attempt  to  combine  fact  and 
law,  to  give  the  facts  a  legal  coloring  and  aspect,  to  present  them 
in  their  legal  bearing  upon  the  issues  rather  than  in  their  actual 
naked  simplicity,  is  so  far  forth  an  averment  of  law  instead  of 
fact,  and  is  a  direct  violation  of  the  principle  upon  which  the 
codes  have  constructed  their  system  of  pleading.  The  peculiar 
method  which  prevailed  at  the  common  law  has  been  fully  de- 
scribed ;  it  was  undoubtedly  followed  more  strictly  and  completely 
in  certain  forms  of  action  than  in  others;  in  a  few  instances  — 
as  in  a  special  action  on  the  case  —  the  declaration  was  framed 
in  substantial  conformity  with  the  reformed  theory.  But  in  very 
many  actions,  and  those  in  constant  use,  the  averments  were 
almost  entirely  of  legal  conclusions  rather  than  of  actual  facts. 
The  familiar  allegations  that  the  plaintiff  had  "  bargained  and 
sold,"  or  "  sold  and  delivered,"  that  the  defendant  "  was  indebted 
to  the  plaintiff,"  or  "  had  and  received  money  to  the  plaintiff's 
use,"  and  very  frequently  even  the  averment  of  a  promise  made 
by  the  defendant,  may  be  taken  as  familiar  illustrations  from 
among  a  great  number  of  other  similar  phrases  which  were  found 
in  the  ordinary  declarations.  Rejecting  as  it  does  the  techni- 
calities, the  fictions,  the  prescribed  formulas,  and  the  absurd 
repetitions  and  redundancies,  of  the  ancient  common-law  system, 
the  new  pleading  radically  differs  from  the  old  in  no  feature  more 
important  and  essential  than  this,  that  the  allegations  must  be  of 
dry,  naked,  actual  facts,  while  the  rules  of  law  applical)le  thereto, 
and  the  legal  rights  and  duties  arising  therefrom,  must  be  left 


GENERAL   PRINCIPLES    OF   PLEADING.  567 

entirely  to  the  courts.  While  this  doctrine  has  been  uniformly 
recognized  as  correct  when  thus  stated  in  an  abstract  and  gen- 
eral manner,  it  has  sometimes  been  overlooked  or  disregarded  in 
passing  upon  the  sufficiency  and  regularity  of  particular  plead- 
ings. Whether  those  decisions  which  have  permitted  the  com- 
mon counts  to  be  used  as  good  complaints  or  petitions,  and  those 
which  have  required  the  promise  implied  by  law  to  be  expressly 
averred  as  though  actually  made,  are  in  conformity  with  this 
doctrine,  will  be  considered  in  subsequent  paragraphs,  and  the 
various  cases  bearing  upon  the  question  will  be  cited  and  dis- 
cussed. It  is  sufficient  for  my  present  purpose  to  state  the 
doctrine  in  its  general  form,  and  to  reserve  its  application  for 
another  portion  of  the  chapter. 

§  530.  As  the  foregoing  analysis  has  been  exclusively  based 
upon  the  text  of  the  codes,  I  shall  now  test  the  correctness  of 
its  conclusions,  and  illustrate  the  extent  and  application  of  its 
general  doctrines,  by  a  reference  to  the  decided  cases,  following 
in  the  arrangement  of  the  subject-matter  the  order  already 
adopted.  The  rule  that  facts  alone  are  to  be  stated,  to  the 
exclusion  of  law  and  of  the  legal  rights  and  duties  of  the  parties, 
has  been  uniformly  accepted  by  the  courts,  and  has  been  enforced. 
in  every  variety  of  issues  and  of  special  circumstances.  In  a 
very  recent  decision,  this  general  doctrine  was  expressed  in  the 
following  language :  "  Matter  of  law  is  never  matter  to  be 
alleged  in  pleading.  No  issue  can  be  framed  upon  an  allegation 
as  to  the  law.  Facts  only  are  pleadable,  and  upon  them  without 
allegation  the  courts  j)ronounce  and  appl}^  the  law.  This  is  true 
alike  in  respect  to  statutes  and  to  the  common  law."  ^  Among 
the  allegations  which  have  been  condemned  as  legal  conclusions, 
and  for  that  reason  as  forming  no  material  issue,  and  which  have 
been  rejected  as  failing  to  state  any  element  of  a  cause  of  action, 
the  following  are  given  as  illustrations  :  In  an  action  to  dissolve 
a  partnership,  for  an  accounting,  &c.,  the  averment  that  on  a 

1  People  V.  Commissioners,  &c.,  54  precluded  the  defendants  from  raising  tlie 
N.  Y.  276,  279.  The  question  was  as  to  question  at  the  argument.  Johnson  J. 
the  TaHdity  of  a  certain  statute.  The  said :  "  The  objection  to  its  [tliis  ques- 
defendants,  in  their  pleading,  had  ad-  tion]  being  raised  is  that  the  defendants 
mitted  its  validity,  and  that  they  were  have,  in  pleading,  admitted  the  obligation 
required  by  it  to  do  the  acts  sought  to  be  of  tiie  law,"  and  then  adds  the  language 
enforced  by  the  action,  and  had  nowhere  quoted,  in  tlie  text.  See  also  Common- 
raised  an}-  objection  on  the  record.  Tlie  wealth  i'.  Cook,  8  Bush,  220,  224  ;  Clark 
adverse  party  claimed  that  this  admission  v.  Liueberger,  44  Ind.  223,  228,  229. 


568 


CIVIL   REMEDIES. 


day  named,  and  for  a  long  time  previous  thereto,  the  defendant 
and  the  plaintiffs  "  were  partners  doing  business  under  the  firm 
name  of  T.  &  C. ;  "  ^  in  an  action  to  restrain  the  removal  of  a 
county  seat  under  a  statute  which  was  claimed  to  be  special  and 
therefore  void,  the  allegation  tliat  "  said  act  is  a  special  law  in  a 
case  where  a  general  law  of  uniform  operation  throughout  the 
State  exists,  and  can  be  made  applicable  ; "  ^  in  an  action  ap- 
parently to  recover  damages  for  the  wrongful  interference  with 
the  plaintiff's  possession  of  certain  land,  the  averment  that  the 
plaintiff  "  was  entitled  to  the  exclusive  possession  of  "  the  prem- 
ises in  question  ;  ^  in  an  action  against  a  subscriber  to  the  stock 
of  a  corporation  to  be  organized,  brought  to  recover  the  amount 
of  his  subscription,  an  averment  that  the  "  company  was  legally 
organized,  into  which  organization  the  defendant  entered."  "^ 

§  531.  Also,  in  an  action  to  recover  on  a  policy  of  fire  insur- 
ance, by  the  terms  of  which  the  sum  assured  did  not  become 
payable  until  certain  acts  had  been  done  by  the  plaintiff  as  con- 
ditions precedent,  an  averment  merely  "  that  the  whole  of  said 
sum  is  now  due  ;  "  ^  in  an  action  to  restrain  the  collection  of  a  tax 
on  the  plaintiff's  land,  an  allegation  that  the  land  "  is  b}^  the  laws 
of  the  State  exempt  from  taxation  ;  "  ^  in  a  suit  to  recover  a  stock 


1  Groves  v.  Tallman,  8  Nev.  178.  A 
general  demurrer  to  the  complaint  was 
sustained,  the  court  holding  tiiat  this  alle- 
gation was  a  mere  conclusion  of  law,  and 
that  the  executed  agreement  of  partner- 
ship should  have  been  set  forth.  The 
decision,  as  it  seems  to  me,  is  entirely 
wrong  :  the  plaintiff  had  stated  the  is- 
suable fact,  while  the  court  demanded 
the  evidence  :  there  may  have  been  no 
written  contract  of  partnership. 

2  Evans  v.  Job,  8  Nev.  322,  the  court 
further  holding,  that,  when  the  complaint 
alleges  a  mere  conclusion  of  law,  no 
answer  to  such  allegation  is  necessary. 

3  Garner  i'.  McCullougii,  48  Mo.  318. 
The  petition  did  not  state  that  the  plain- 
tiff was  or  had  ever  been  in  possession, 
and  failed  to  disclose  the  nature  of  his 
claim  or  the  source  of  his  right,  the  alle- 
gation quoted  being  the  sole  assertion  of 
a  right  in  the  land.  It  was  held  that  no 
cause  of  action  was  stated,  and  all  evi- 
dence should  be  excluded  at  the  trial, 
although  the  defendant  had  answered. 


*  Hain  v.  North  West.  Gravel  R.  Co., 
41  Ind.  196.  This  averment  was  held  to 
have  raised  no  issue,  citing  Indianapolis, 
&c.  R.  R.  V.  Robinson,  3-5  Ind.  380. 

5  Doyle  i\  Phwnix  Ins.  Co.,  44  Cal. 
264,  268.  The  court  having  decided  that 
the  complaint  did  not  sufficiently  aver  a 
performance  of  the  conditions  precedent 
by  the  plaintiff,  and  so  failed  to  state  a 
cause  of  action,  added  :  "  The  allegation 
that  'the  sum  is  now  due'  may  belaid 
out  of  the  case,  inasmuch  as  that  is  a 
conclusion  of  law  merely." 

•=  Quinney  v.  Stockbridge,  33  Wise. 
505.  There  was  no  other  statement 
showing  that  the  land  was  exempt ;  and, 
in  order  that  it  should  be  so,  certain 
special  circumstances  must  have  existed. 
The  averment  was  held  to  be  of  no  force 
whatever,  unless  accompanied  by  allega- 
tions of  the  proper  facts ;  and  a  prelimi- 
nary injunction  was  therefore  dissolved 
upon  the  complaint  alone. 


GENERAL   PRINCIPLES   OF  PLEADING.  569 

subscription  to  a  corporation,  an  allegation  that  the  party  became 
a  subscriber  to  the  capital  stock  "  by  signing  and  delivering  "  a 
specified  agreement ;  ^  an  allegation  "  that  the  title  of  the  plaintiff 
to  said  lots  by  virtue  of  said  tax  sale  is  invalid,  from  an  irregu- 
larity in  the  notice  of  such  tax  sale  ;  "  ^  in  an  action  to  set  aside  a 
judgment  for  a  tax,  an  allegation  "  that  no  notice  was  given  of 
the  said  proceedings,  or  any  of  them,"  which  resulted  in  the  tax  ;  ^ 
in  an  action  brought  to  recover  land  claimed  by  inheritance  from 
a  former  owner,  the  allegation  that  the  plaintiff  was  "  one  of  the 
heirs  of  "  such  former  owner  ;  *  in  an  action  on  a  contract  where  the 
defendant's  liability  depended  upon  the  performance  of  certain 
conditions  i^recedent  by  a  third  person,  the  mere  allegation,  with- 
out stating  any  performance  by  such  person,  that  "  the  defendant 
neglected  and  refused  "  to  perform  the  stipulated  act  on  his  part 
"  according  to  the  terms  of  said  agreement."  ^  The  law  of 
another  state  or  country,  however,  is  regarded,  for  purposes  of 
pleading,  as  matter  of  fact,  and  must  be  averred  with  so  much 
distinctness  and  particularity  that  the  court  may,  from  the  state- 
ment alone,  judge  of  its  operation  and  effect  upon  the  issues  pre- 
sented in  the  cause.  Thus,  in  an  action  upon  a  note  executed 
and  made  payable  in  Illinois,  the  allegation,  "  that  by  the  law  of 
Illinois  the  defendant  was  indebted  to  the  plaintiff  in  the  amount 
of  such  note,"  was  held  insufficient  to  admit  evidence  of  what  the 
Illinois  law  is  in  reference  to  the  subject-matter.^  In  Indiana  the 
averment,  that  the  defendant  "  is  indebted  "  to  the  plaintiff  in  a 
specified  amount,  is  held  to  be  sufficient.  This  ruling,  however, 
is  not  based  upon  the  general  principles  of  pleading  announced 

1  "Wheeler  v.  Floral  Mill  Co.,   9  Nev.  son,  4  J.  J.  Marsh.  649 ;  Currie  r.  Fowler, 

254,  258.     In  an  action  against  the  com-  5  J.  J.  Marsh.  145. 

pany,  it  set  up  the  demand  mentioned  in  ^  Wilson  v.  Clark,  20  Minn.  867,  369. 

the  text  as  a  set-off  or  counter-claim,  al-  This  was  declared  to  be  a  mere  conclusion 

leging  the  plaintiff's  liability  in  the  man-  of  law  ;  and  as  no  facts  were  stated  from 

ner  described.     A  judgment  in  favor  of  which  it  could  be  inferred,  it  was  a  nul- 

the  defendant  was  reversed,  because  there  lity. 

was  no  averment   in  the  answer  which         *>  Roots  v.  Merriwether,  8  Bush,  397, 

made  out  a  cause  of  action,  citing  Bar-  401.     As  a  foreign  law  is  a  matter  of  fact, 

ron  V.   Frink,   30   Cal.  486  ;    Burnett  v.  the  court  does  not  take  judicial  notice  of 

Stearns,  33  Cal.  473.  it,  and  if  different  from  that  of  the  forum, 

-  Webb   V.   Bidwell,    15    Minn.    479,  and  if  it   must   be  invoked  in   order   to 

485.  make  out  tlie  cause  of  action,  the  par- 

3  Stokes  v.  Geddes,  46  Cal.  17.  ticular  doctrine  or  rule  relied  upon  must 

*  Larue  v.  Hays,  7  Bush,  50,  53.    This  be   fully   and  accurately    stated    in   the 

allegation  was  held  not  to  be  admitted  by  pleading.     See  Woolsey  v.  Williams,  34 

a  failure  to  deny  it,  citing  Banks  v.  John-  Iowa,  418,  415. 


570  CiriL   REMEDIES. 

by  the  codes,  but  upon  certain  short  forms  authorized  by  the  legis- 
lature, which  were  copied  from  the  ancient  common  counts  in 
assumpsit.^  Examples  similar  to  the  foregoing  might  be  indefi- 
nitely multiplied ;  but  these  are  sufficient  to  illustrate  the  action 
of  the  courts,  and  to  show  how  firmly  they  have  adhered  to  the 
doctrine  that  facts,  and  not  law,  must  be  alleged,  and  that  the 
averments  of  legal  conclusions  without  the  facts  from  which  they 
have  arisen  form  no  issues,  state  no  causes  of  action,  admit  no 
evidence,  and  do  not  even  support  a  verdict  or  judgment,  —  in 
short,  that  they  are  mere  nullities. 

§  532.  Pursuing  the  order  before  indicated,  the  following  cases 
will  explain  and  illustrate  the  second  doctrine  that  the  principal, 
material,  and  issuable  facts  must  be  pleaded,  and  not  the  details 
of  evidentiary  or  probative  matter  from  which  the  existence  of 
the  final  facts  is  inferred.  The  language  employed  by  the  court 
in  an  action  brought  to  restrain  the  execution  of  tax  deeds  of  the 
plaintiff's  land,  on  account  of  illegality  in  the  proceedings, 
furnishes  a  very  instructive  example  of  such  averments :  "  The 
plaintiff  relied  upon  the  absence  of  preliminary  proceedings  essen- 
tial to  the  validity  of  the  tax  sales.  But  instead  of  averring, 
either  of  his  own  knowledge  or  upon  information  and  belief,  that 
such  proceedings  were  not  had,  he  only  averred  that  he  had 
searched  in  the  proper  offices  for  the  evidence  that  they  were 
had,  and  failed  to  find  it.  The  only  issue  that  could  be  made 
upon  such  an  allegation  would  be  whether  he  had  searched  and 
found  the  evidence  or  not,  which  would  be  entirely  immaterial."  ^ 
In  pleading  certain  classes  of  issues,  it  is  undoubtedly  difficult 
sometimes  to  discriminate  between  the  final  facts  and  the  proba- 
tive matter.     This  is  especially  true  in   charging  fraud,  which 

1  Jolinson   V.   Kilgore,    39    Ind.    147.  the  distinction  between  the  ultimate  is- 

These   statutory  forms,   in   my   opinion,  suable  I'act  which  cannot  be  changed  in 

violate    the    fundamental    principles     of  order  to  make  out  a  given  cause  of  action, 

pleading  adopted  by  the   reformed  pro-  and  the  probative  matter  by  which  such 

cedure,  more  so  even  than  the  ancient  fact  is  established,  and  which  may  vary 

common  counts.      This  question  will  be  according  to  the  exigencies  of  the  case, 

particularly  examined   in   a    subsequent  Of  course  the  omission  of  the  preliminary 

paragraph.  proceedings  must  be  proved,  but  it  could 

^  Rogers  v.  Milwaukee,  13  Wise.  610,  be   proved   by   many  different   kinds   of 

611.     If  the  plaintiff  had  alleged  that  the  evidence.     This  distinction   is   a  certain 

proceedings  in  question  had  been  omitted,  test  by  which  to  determine  whether  any 

the  facts  stated  by  him  would  have  been  given  fact  is  issuable  and  material,  or  is 

proper  evidence  in  support  of  the  aver-  only  probative. 
ment.     This  case  exhibits   very  clearly 


GENERAL   PRINCIPLES    OP   PLEADING.  571 

must  almost  invariably  consist  of  many  different  circumstances, 
some  affirmative  and  some  negative  ;  but  the  rule  should  never- 
theless be  applied.  "  It  is  not  necessary  nor  proper  for  the 
pleader  to  set  out  all  the  minute  facts  tending  to  establish  the 
fraud  ;  the  ultimate  facts,  and  not  the  evidence,  should  be 
pleaded."  ^  An  allegation  of  mere  evidentiary  matter,  and  not 
an  ultimate  or  issuable  fact,  is  surplusage  ;  it  need  not  be  contro- 
verted, and  is  not  admitted  by  a  failure  to  deny.  As  was  said  in 
a  recent  decision,  "  the  matter  averred  is  not  an  ultimate  fact ;  that 
is  to  say,  a  fact  which  is  required  to  be  stated  in  a  complaint,  and 
which,  if  not  denied  by  the  answer,  would  stand  as  admitted  ;  but 
it  is  merely  matter  of  evidence  which  might  be  stricken  out  of  the 
complaint."  ^  If  in  addition  to  the  issuable  or  material  facts  the 
pleading  also  contains  the  details  of  evidence  tending  to  estab- 
lish them,  these  latter  averments  should  be  stricken  out  on  mo- 
tion as  surplusage.^  There  is  a  class  of  allegations  which  are 
necessary,  but  which  are  not  issuable  in  the  ordinary  meaning  of 
this  term  as  already  defined,  —  that  is,  the  cause  of  action  is 
not  defeated  by  a  failure  to  prove  them  as  averred,  and  an  omis- 
sion to  deny  them  does  not  admit  their  truth,  but  still  they  must 
be  stated,  and  a  complaint  or  petition  would  be  insufficient,  or  at 
least  incomplete,  without  them.  This  class  includes  in  general 
the  statements  of  time,  place,  value,  quantity,  amounts,  and  the 
like ;  although,  under  peculiar  circumstances,  the  allegation  of 
any  one  of  these  matters  may  become  in  every  sense  of  the  term 
issuable  and  material.  Ordinarily,  however,  this  is  not  so.  The 
rule  thus  given  prevailed  in  the  common-law  pleading,  and  has 
not  been  changed  by  the  new  procedure.  Thus,  for  example,  in 
an  action  for  the  conversion  of  chattels,  the  statement  of  their 
value  is  not  issuable ;  failure  to  deny  does  not  admit  its  truth, 
nor  exclude  evidence  as  to  the  real  value.^ 

§  533.  The  decisions  which  follow  in  this  and  one  or  two  sub- 
sequent paragraphs  are  cited  in  order  to  furnish  some  examj)les 
of  allegations  which  have  been  judicially  tested  and  pronounced 
sufficient  or  insufficient,  as  the  case  may  be.  A  few  such  par- 
ticular instances  will  better  illustrate  the  general  doctrine  of  the 


1  Cowin  V.  Toole,  31  Iowa,  513,  516 ;  43 ;  Van  Schaick  v.  Farrow,  25  Ind.  310 ; 
Singleton  v.  Scott,  11  Iowa,  589.  Lytle  v.  Lytle,  37  Ind.  281. 

2  Gates  V.  Salmon,  46  Cal.  361,  379.  *  Chicago,  &c.  R.  R.  v.   N.  W.  Union 
s  King  V.  Enterprise  Ins.  Co.,  45  Ind.  P.  Co.,  38  Iowa,  377,  382. 


572  CIVIL   REMEDIES. 

codes,  and  will  more  clearly  explain  the  requisite  form  and  nature 
of  issuable  and  material  averments  than  can  be  done  by  any 
other  method,  either  of  description  or  of  argument.  In  an  action 
npon  a  guaranty  of  a  note,  the  objection  was  raised  by  the  de- 
fendant that  the  complaint  failed  to  state  any  cause  of  action. 
It  set  out  a  note  payable  to  the  defendant  which  fell  due  October 
1,  1867,  and  alleged  "  that  on  the  9th  of  October,  1867  [after  it 
was  due],  the  defendant,  for  value  received,  transferred  said  note 
to  the  plaintiff,  and  then  and  there  guaranteed  the  payment 
thereof  by  his  written  guaranty,  indorsed  thereon  as  follows : 
'  For  value  received,  I  hereby  guarantee  the  payment  of  the  within 
note  when  due,  October  9, 1867  ;'  and  although  said  note  became 
due  and  payable  before  the  commencement  of  this  action,  yet  the 
said  makers  of  said  note,  nor  the  said  defendant,  have  paid  the 
same,  nor  any  part  thereof;  that  the  plaintiff  is  the  owner  and 
holder,"  &c.,  stating  the  amount  due,  and  making  the  usual 
demand  of  judgment.  The  defendant  claimed  that  the  complaint 
did  not  state  a  cause  of  action  because  it  failed  to  allege  that  the 
amount  due  is  due  on  the  note  and  guaranty  or  on  the  guaranty, 
or  from  the  defendant  to  the  plaintiff,  and  failed  to  allege  that 
the  maker  had  not  paid  the  note  ;  also  because  the  guaranty  being 
executed  after  the  note  became  due,  and  stipulating  payment 
when  clue,  is  impossible  and  void.  After  disposing  of  the  last  ob- 
jection by  holding  that  the  guaranty  was  payable  at  once,  the 
court,  by  applying  the  rule  of  favorable  construction  prescribed 
by  the  code,  pronounced  the  complaint  sufficient.^  In  an  action 
against  a  railroad  company  for  killing  the  plaintiff's  horses,  which 
had  strayed  upon  the  track  and  been  run  over,  the  only  negli- 
gence charged  upon  the  defendant  at  the  trial  was  in  reference  to 

i  Gunn  V.  Madigan,  28  "Wise.  158,  163,  the  aid  of  that  rule  to  enable  us  to  hold 

164.      Tlie   opinion   of    the    court,   after  that  it  is  a  good  pleading.     It  sets  out  the 

stating  the   positions  of   the  defendant's  contract  and  the  alleged  breach  thereof, 

counsel,   proceeded  :     "  The    rule    prac-  the  interest  of  the  plaintiff  and  the  liabil- 

tically  applied  by  him  is,  that  a  pleading  ity   of  the  defendant,    and  demands  the 

must  be  construed  most  strictly  against  proper  judgment.     Ouglit  we  to  demand 

the  pleader.     He  seems  to  have  forgotten  more  ?  "     Tlie  only   real  defect    of    the 

that  this  stern  rule  of  the  common  law  is  pleading  is,  that,  from   the   grammatical 

repealed  by  the  code,  and  in  its  place  a  construction  of  a  single  clause,  it  does  not 

more  beneficent  one  has  been   enacted,  allege  that  the  note  was  not  paid.     "  Yet 

Looking  at  the  complaint  in  the  light  of  the  said  makers  of  said  note,  nor  the  said 

this  new  rule,  it  seems  to  us  that  it  states  defendant,  have  paid  the  same."  It  is  thus 

a  cause  of  action.  Indeed,  we  are  not  made  to  aver  that  the  makers /i«re  paid  it. 
quite  sure  that  it  is  necessary  to  invoke 


GENERAL   PRINCIPLES    OF   PLEADING.  673 

its  construction  and  maintaining  of  its  fences  tlirongh  whicli  the 
animals  escaped  and  reached  the  track.  The  sole  allegation  of 
the  complaint  was  that  the  defendant  "  so  carelessly  and  negli- 
gently ran  and  managed  the  said  locomotive  and  cars,  and  the 
said  railroad  track,  grounds,  and  fences,  that  its  said  locomotive 
and  cars  ran  against  and  over  the  said  horses."  It  was  not  even 
stated  that  the  animals  escaped  through  the  fences.  In  j)ro- 
nouncing  upon  the  sufBciency  of  this  averment,  it  was  said  by  the 
court  that  tjie  best  possible  construction  for  the  plaintiff  which 
could  be  put  upon  the  language  was  "  that  the  defendant  so  neg- 
ligently managed  the  fences  that  its  train  ran  over  the  horses," 
and  that,  even  under  the  liberal  rule  prescribed  by  the  codes, 
this  could  not  be  taken  as  alleging  a  cause  of  action  for  negli- 
gently constructing  the  fences,  or  suffering  them  to  be  out  of 
repair,  so  that  the  animals  escaped  through  them  on  to  the  track.^ 
§  534.  In  an  action  for  trespass  to  land,  the  petition  stated 
that  "plaintiff  by  virtue  of  a  contract  with  one  E.  was  entitled 
to  the  exclusive  possession  of"  the  premises,  "that  subsequently 
to  this  contract  the  premises  were  purchased  by  the  defendant  with 
knowledge  of  the  plaintiff's  rights,  that  the  defendant  forcibly 
took  possession  and  excluded  the  plaintiff,"  but  did  not  allege 
that  the  plaintiff  was  ever  in  possession,  nor  the  relation  which 
E.  bore  to  the  land,  nor  the  terms  of  the  contract  with  him,  nor 
that  defendant's  acts  were  wrongful.  This  petition,  it  was  held, 
stated  no  cause  of  action,  and  was  properly  dismissed  at  the  trial.^ 
In  an  action  to  foreclose  a  mortgage  of  land,  the  plaintiff  obtained 
a  preliminary  injunction  to  restrain  the  removal  of  machinery 
which  had  been  so  affixed  to  the  land  as  to  become  part  of  the 
freehold.  A  motion  was  made  on  the  pleadings  to  dissolve  the 
injunction  on  the  ground  that  the  complaint  contained  no  allega- 
tions which  could  be  made  the  basis  of  that  relief.  The  clause 
relied  upon  by  the  plaintiff  was  the  following :  That  the  defend- 
ants had  erected  on  the  premises  a  manufacturing  establishment, 
"  and  put  therein  machinery  which  had  become  i^art  and  parcel 
thereof,"  and  that  "  among  other  machinery  which  they  put 
therein  was  a  steam-engine,"  &c.,  enumerating  other  articles. 
This  was  held  to  be  a  sufficient  averment  that  the  engine,  &c., 
had  become  part  of  the  realty.     If  the  defendants  desired  a  more 

1  Antisdel  v.  Chicago  &  N.  W.  R.  R.,  26  Wise.  145,  147. 

2  Garner  v.  McCullougli,  48  Mo.  318. 


574  CIVIL  REMEDIES. 

explicit  allegation  they  should  have  moved  for  that  purpose,  the 
manner  of  raising  the  objection  which  they  had  adopted  being 
tantamount  to  a  demurrer  for  want  of  sufficient  facts. ^  Tlie  com- 
plaint, in  an  action  on  a  note  against  the  maker  and  indorsers, 
alleged  several  successive  indorsements  until  it  was  thus  indorsed 
and  transferred  to  one  ]\I.,  hut  omitted  to  state  an  indorsement 
and  transfer  from  him  to  the  plaintiff.  It  contained,  however, 
the  following  averment,  "  that  the  plaintiff  is  now  the  lawful 
owner  and  holder  of  the  said  note,  and  the  defendants  are  justly 
indebted  to  him  thereon,"  &c.  This  was  held  to  be  a  sufficient 
statement  of  the  jolaintiff 's  title  ;  the  defect,  if  any,  was  one 
which  should  be  cured  by  motion  to  make  the  pleading  more 
definite  and  certain.^  The  material  portion  of  the  complaint  in 
an  action  for  work  and  labor  simply  stated  that  the  plaintiff  per- 
formed work  "  for  the  defendant  at  an  agreed  price  of  $26  per 
month."  It  was  objected  on  demurrer  that  no  request  on  the 
part  of  the  defendant  was  alleged,  but  the  pleading  was  held  to 
be  sufficient  under  the  rule  of  construction  adopted  by  the  codes.^ 
In  an  action  on  a  town  treasurer's  official  bond,  the  complaint, 
after  setting  out  the  bond,  averred  the  breach  thereof  in  the  fol- 
lowing manner,  simply  negativing  the  conditions :  "  He  has  not 
duly  and  faithfully  performed  the  duties  of  his  office,  and  has  not 
faithfully  and  truly  accounted  for  and  paid  over  according  to  law 
all  the  state  and  county  taxes  which  came  into  his  hands:  "  but 
it  did  not  allege  that  any  such  taxes  had  ever  come  into  his 
hands.  This  complaint  was  pronounced  fatally  defective  on 
demurrer,  as  the  facts  constituting  the  breach  should  have  been 
pleaded."^ 

§  535.  The  petition  in  an  action  against  H.  as  maker  and  C.  as 
indorser  of  a  note  set  out  the  note  made  by  H.  payable  to  bearer 
and  a  guaranty  thereon,  "  I  guarantee  the  paj'ment  of  the  within 

1  Kimball  r.  Darling,  32  Wise.  675,  3  Joubert  v.  Carli,  26  Wise.  594,  per 
684.  The  allegation  in  question  is  an  ad-  Paine  J. :  "  Tiie  allegation,  that  one  has 
mirable  illustration  of  the  distinction  be-  performed  work  for  anotlier  at  an  agreed 
tween  facts  material  to  the  remedy  in  price  per  month  or  per  day,  must  be  held 
equity  suits  and  issuable  facts  in  legal  to  fairly  import  that  the  agreement  was 
actions.  A  failure  to  prove  this  special  prior  to  the  performance  of  the  work,  and 
averment  would  not  defeat  the  cause  of  that  the  work  was  done  in  pursuance  of 
action;  it  would  simply  modify  and  limit  it." 

the  amount  of  relief  to  be  obtained  by  *  Wolff  y.  Stoddard,  25  Wise.  503,505; 

the  plaintiff;  but  it  was  certainly  a  neces-  Supervisors     v.    Kirby,    25    Wise.    498. 

sary  allegation  for  that  purpose.  Dixon  C.  J.  dissented  in  both  cases. 

2  Reeve  v.  Fruker,  32  Wise.  243. 


GENERAL   PRINCIPLES    OF   PLEADING.  575 

note  to  C.  E.  [the  plaintiff]  or  order,"  signed  by  C,  and  added  : 
"  The  defendant  H.  is  liable  on  said  note  as  maker,  and  the 
defendant  C.  as  indorser  and  guarantor.  The  plaintiff  C.  E.  is 
the  holder  and  owner  of  said  note.  There  is  due  from  the  defend- 
ants to  the  plaintiff  on  said  note  the  sum  of,"  &c.  On  demurrer 
by  the  defendant  C,  he  was  held  to  be  absolutely  liable  as  a 
guarantor,  and  that  under  the  liberal  rule  of  construction  the 
allegations  of  the  complaint  imported  a  cause  of  action,  and  were 
sufficient.!  In  an  action  by  the  vendee  for  fraudulent  represen- 
tations made  on  a  sale,  the  complaint  must  allege  that  the  plain- 
tiff relied  upon  them  ;  and  the  absence  of  such  an  averment  will 
not  be  supplied  by  a  statement  of  mere  evidentiary  matter  tending 
to  show  the  existence  of  that  material  fact,  unless  the  evidence 
so  stated  is  conclusive.^  In  an  action  brought  to  recover  damages 
for  the  conversion  of  chattels,  the  complaint  was  substantially 
as  follows:  That  the  plaintiff  was  on,  &c.,  the  owner  of  certain 
chattels ;  that  he  leased  them  to  one  S.  by  a  written  lease,  in 
which  he  reserved  the  right  to  take  possession  of  them,  and  to 
terminate  the  letting,  whenever  he  should  deem  himself  unsafe, 
or  that  the  chattels  were  not  well  taken  care  of ;  that  S.  took 
possession  under  the  lease  ;  that  the  defendant,  who  is  a  United 
States  marshal,  seized  them  while  thus  in  the  possession  of  S. 
under  a  process  in  bankruptcy  against  S. ;  that  plaintiff  demanded 
them  from  the  defendant,  who  refused,  &c.  ;  that  the  plaintiff 
demanded  the  possession  from  the  defendant  "  on  the  ground  that 
the  plaintiff  deemed  himself  unsafe,  and  did  not  think  that  the 
property  was  well  taken  care  of;"  and  that  the  defendant  had 
converted  the  same  to  his  own  use.  The  complaint  did  not  con- 
tain any  further  or  more  express  statement  that  the  plaintiff  did 

1  Clay  V.  Edgerton,  19  Ohio  St.  549.         2  Goings  v.  White,  33  Ind.  125.     This 

The  court,  after  stating  that  tlie  defendant  decision   assumes   that,   although   in   ac- 

C.  was  absolutely  liable  as  a  guarantor,  cordance  with  the  general  doctrine,  the 

added  that  the  allegations  above   stated  principal  fact  and  not  the  evidence  of  it 

implied  a  transfer  of  the  note  from  him  should  be  pleaded,  yet  a  statement  of  the 

to  the  plaintiff,   and  a  consideration  by  evidence  may  under  certain  circumstances 

means  of  such  transfer.     C.  is  thus  shown  be  sufficient  to  raise  a  substantial  issue. 

to  be  an  indorser,  and  is,  as  it  appears,  If  the  principal  fact   be  not  alleged,  but 

therefore  held  liable  as  a  guarantor.     This  the   details   of  evidence   are    given,  and 

decision,  in  my  opinion,  cannot  be  sup-  these  are  positive  and  conclusive  in  their 

ported  on  principle.     It  is  such  ruling  as  nature,  the  pleading  will  not  be  bad  on 

this  that  destroys  the  scientific  character  demurrer,  although  it  will  be  subject  to 

and   usefulness  of  the  reformed  system,  amendment  on  a  motion  to  make  it  more 

and  tends  to  bring  it  into  discredit.  definite  and  certain. 


576  CIVIL    REMEDIES. 

as  a  matter  of  fact  deem  himself  unsafe.  A  demurrer  for  want 
of  facts  was  sustained,  and  the  pleading  was  lield  insufficient 
because  it  did  not  show  a  right  of  possession  in  the  plaintiff  when 
the  action  was  brought,  in  that  it  failed  to  allege  any  fact  enti- 
tling him  to  terminate  the  letting,  and  to  resume  possession  of 
his  property.^  The  petition  in  an  action  for  conversion  alleged 
that  the  defendant  "  had  in  his  possession,  and  under  his  control, 
$5,000  in  money,  and  810,000  in  hardware,  stoves,  &c.,  of  the 
money  and  property  owned  by  the  plaintiif,"  and  converted  the 
same.  This  was  declared,  on  a  motion  to  make  the  petition  more 
definite  and  certain,  to  be  a  sufficient  averment  that  the  money 
and  goods  were  the .  property  of  the  plaintiff.^  If  an  action  is 
brought  on  a  bail  bond  given  in  a  criminal  proceeding,  the  com- 
plaint should  allege  that  the  person  was  released  from  custody 
upon  the  execution  and  delivery  of  the  undertaking,  and  a  plead- 
ing omitting  this  statement  was  held  bad.^  Where  a  tender  is 
essential  to  the  plaintiff's  cause  of  action,  the  complaint  must 
either  aver  it  in  express  terms,  or  must  state  a  sufficient  excuse 
for  omitting  it.  In  such  a  case  the  plaintiff  alleged  "  that  he  has 
been  ready  and  willing  during  all  the  time  aforesaid,  and  has 
offered,  to  accept  and  take  said  conveyance,  and  to  pay  the 
balance  of  said  purchase-money."  This  averment  was  pronounced 
to  be  insufficient,  and  the  complaint  was  held  bad  on  demurrer, 
as  it  neither  stated  a  tender,  nor  an  excuse  for  not  making  a 
tender."*  In  actions  brought  to  recover  damages,  an  allegation 
that  damages  have  been  sustained  is  indispensable.  As  was  said 
by  the  Supreme  Court  of  California  in  a  late  decision,  "  it  is  not 
alleged  in  the  complaint  that  the  plaintiff  has  sustained  damages, 
and  therefore  he  is  not  entitled  to  judgment  for  damages."^ 

§  536.  The  cases  contained  in  the  last  three  paragraphs,  and 
from  which  quotations  have  been  made,  were  not  selected  as 

1  Hathaway   v.  Quinbv,  1  N.  Y.  S.  C.  -  Sturinan  v.  Stone,  31  Iowa,  115. 

386.     The  construction  given  to  the  com-  ?  Los  Angeles  County  v.  Babcock,  45 

plaint  in   tliis  case  was  certainly  severe  Cal.  252. 

and  technical,  and  hardly  in  accordance  *  Euglander  v.  Rogers,  41    Cal.   420, 

with  the  rule  laid  down  in  the  code.     The  422. 

objection  is  for  incompleteness  and    in-  ^  Bohall  v.  Diller,  41   Cal.  532.     See 

definiteness  of  the  allegation.    The  plain,  also  Bradley   v.    Aldrich,  40  N.  Y.  504, 

tiflf  certainly  does  state,  although  perhaps  and  supra,  §  84,  note  3  ;  and  comp.  Graves 

in  a  partial  manner,  that  he  deemed  him-  v.  Spier,  58  Barb.  349,  sujim,  §  81,  note  2. 
self  unsafe.    A  motion  was  certainly  more 
appropriate  than  a  demurrer. 


ALLEGATIONS   OF   IMPLIED    PROMISES.  577 

examples  of  proper  pleading  according  to  the  principles  estab- 
lished by  the  reformed  procedure  ;  on  the  contrary,  most  of  those 
which  were  sustained  by  the  courts  escaped  condemnation  only 
by  applying  the  liberal  rule  of  construction  prescribed  in  the 
codes.  These  decisions  are  given  rather  to  show  how  far  a  plead- 
ing may  disregard  the  requirements  as  to  form  and  method,  and 
may  violate  all  the  principles  of  logical  order  and  precision  of 
statement,  and  may  yet  be  held  sufficient  on  general  demurrer, 
because  the  material  facts  constituting  a  cause  of  action  can  be 
discovered  among  the  mass  of  confused  or  imperfect  allegations. 
The  principles  and  doctrines  of  pleading  adopted  and  enforced 
by  the  courts  are  illustrated  and  explained  by  such  examples  as 
these,  but  the  cases  themselves  are  to  be  carefully  avoided  as 
precedents.  The  mode  of  correcting  imperfect  and  insufficient 
averments  as  distinguished  from  those  which  state  no  cause  of 
action,  and  the  liberal  rule  of  construction  introduced  by  the 
codes,  will  form  the  subject  of  a  separate  and  careful  discussion 
in  a  subsequent  portion  of  this  chapter. 

§  537.  In  considering  the  third  general  doctrine  developed  in 
the  preceding  analysis,  —  namely,  that  the  facts  pleaded  should  be 
stated  as  the}^  actually  occurred  or  existed,  and  not  their  mere 
legal  aspect,  effect,  or  operation,  —  two  practical  questions  are 
presented,  and  the  discussion  will  be  mainly  confined  to  them. 
These  questions  are,  (1)  whether  in  actions  based  upon  the  com- 
mon-law notion  of  an  implied  contract  the  pleader  should  simply 
allege  the  facts  as  they  really  occurred  from  which  the  legal  duty 
arises,  without  averring  a  promise  which  was  never  made,  or 
whether  he  must  or  may,  as  in  the  common-law  assumpsit,  state 
a  promise  to  have  been  expressly  made  which  is  the  legal  effect 
or  operation  of  those  facts  ;  and  (2)  whether  the  ancient  common 
counts,  or  allegations  substantially  identical  therewith,  fulfil  the 
requirements  of  the  new  procedure,  and  can  be  used,  in  con- 
formity with  its  fundamental  principles,  as  complaints  or  petitions 
in  the  classes  of  actions  to  which  they  would  have  been  appro- 
priate under  the  former  system.  I  shall  take  up  these  questions 
separately,  first  collecting  and  comparing  the  decisions  bearing 
upon  each ;  and,  secondly,  discussing  them  upon  principle. 

§  538.  (1)  Whether  in  actions  upon  implied  contract  it  is  neces- 
sary or  proper  to  allege  a  promise  as  made  by  the  defendant. 

37 


578  CIVIL   REMEDIES. 

There  is  a  marked  unanimity  of  opinion  among  the  decisions 
wliieh  directly  involve  this  question,  since  most  of  them  accept 
the  language  of  the  codes,  and  fully  recognize  the  radical  change 
in  principle  eflfected  by  the  reformed  procedure.  In  Farron  v. 
Sherwood,^  after  sustaining  a  complaint  substantially  a  general 
count  in  assumpsit  for  work  and  labor  without  any  averment  of 
a  promise  by  the  defendant,  the  New  York  Couit  of  Appeals 
said  :  "It  is  not  necessary  to  set  out  in  terms  a  promise  to  pay ; 
it  is  sufficient  to  state  facts  showing  the  duty  from  which  the 
law  implies  the  promise.  That  complies  with  the  requirement 
that  facts  must  be  stated  constituting  the  cause  of  action."  This 
language  was  not  a  mere  dictum  ;  it  was  absolutely  essential  to 
the  judgment,  since  the  complaint  contained  no  averment  of  a 
promise,  and  was  nevertheless  held  sufficient.  The  decision 
must  therefore  be  regarded  as  settling  the  doctrine  for  that  State. 
In  another  action  to  recover  compensation  for  work  and  labor, 
where  the  complaint  stated  various  services  performed  by  the 
plaintiff  from  which  it  was  claimed  a  duty  on  the  part  of  the 
defendant  arose,  but  alleged  no  promise  b}^  him,  the  Supreme 
Court  of  New  York  adopted  the  same  rule  of  pleading.^  On 
the  other  hand,  the  Supreme  Court  of  Wisconsin  said  by  way  of 
a  dictum  in  an  early  case :  "  Good  pleading  requires  that  a  prom- 
ise which  the  law  implies  should  be  stated."  ^  And  in  an  action 
for  services  alleged  in  the  petition  to  have  been  performed  at  the 
request  of  an  agent  of  the  defendant,  the  Supreme  Court  of 
Missouri  held  that  either  the  promise  must  be  averred,  or  the 

1  Farron  v.  Sherwood,  17  N.  Y.  227,  such  a  case,  for  tlie  i)Iaintiff  to  allege  in  his 
230.  coniplahit  any  promise  on  tlie  part  of  the 

2  Cropsey  i\  Sweeney,  27  Barb.  310,  defendant,  but  lie  must  state  facts  which, 
312,  jter  Sutherland  J.,  who  delivered  the  if  true,  according  to  well-settled  principles 
following  opinion:  "Although  the  form  of  law,  would  have  authorized  him  to 
of  the  action  of  assumpsit,  and  of  the  allege,  and  the  court  to  infer,  a  promise  on 
pleadings  therein,  has  been  abolished,  yet  the  part  of  tiie  defendant  before  the  code, 
the  obligation  of  contracts  and  the  dis-  The  form  of  assumpsit  is  no  longer  neces- 
tinction  between  an  express  and  an  im-  sary,  nor  perhaps  even  proper,  in  such  a 
plied  assumpsit  remain;  and  notwith-  case;  but  facts  sufficient  to  raise  it,  and 
standing  the  code,  in  a  large  class  of  to  put  it  on  paper  were  it  lawful  to  do  so, 
cases  now  as  before  the  code,  it  is  only  on  are  still  necessary."  He  goes  on  to  hold 
the  theory  of  an  implied  assumpsit,  in-  that  the  special  facts  alleged  in  the  com- 
ferred  from  the  conduct,  situation,  or  plaint  raise  no  implied  j)roniise. 
mutual  relations  of  the  parties,  that  jus-  ^  Bird  v.  Mayer,  8  Wise.  362,  367. 
tice  can  be  enforced,  and  the  performance  This  remark  was  entirely  obiter.  The 
of  a  legal  duty  compelled.  It  is  no  longer  question  before  the  court  was,  whether  a 
necessary,  and  perhaps  not  even  proper,  in  warranty  sued  on  was  express  or  implied. 


ALLEGATIONS    OP    IMPLIED    PROMISES.  579 

facts  from  which  a  promise  will  be  inferred  as  a  matter  of  law.^ 
In  Montana,  the  rule  is  distinctly  established  that  the  facts  from 
which  the  promise  is  inferred  should  be  pleaded,  and  not  the 
promise  itself ;  but  that  in  an  action  on  an  express  promise  it 
must  be  alleged. ^  The  Supreme  Court  of  Indiana  has  held  with 
evident  reluctance  that  in  such  a  case  it  is  not  necessary  for  the 
party  to  aver  a  promise,  and  that  it  is  enough  for  him  to  state  the 
facts  from  which  the  law  implies  it.  The  court  added,  however, 
after  this  concession,  that  it  is  better  in  all  cases  to  allege  a 
promise,  saying:  "  It  is  always  good  pleading  to  state  the  legal 
effect  of  the  contract  whether  it  is  written  or  oral."  ^  And  in 
another  case,  where  the  action  was  brought  for  the  value  of  goods 
sold,  &c.,  the  same  court,  while  passing  upon  the  sufficiency  of  a 
complaint  which  was  substantially  in  the  form  of  an  old  common 
count  without  a  request  or  a  promise  averred,  used  the  following 
language :  "  In  all  these  instances  the  law  implies  the  promise 
from  the  facts  stated,  and  our  statute  simply  requires  the  state- 
ment of  facts ;  and  if  upon  these  facts  the  law  implies  a  promise, 
the  complaint  would  be  good."  ^ 

§  539.  The  question  was  discussed  by  the  Supreme  Court  of 
New  York  in  a  very  recent  decision ;  and  the  importance  of  the 
case,  and  the  positions  taken  in  the  opinion,  make  it  necessary  tcy 
quote  from  the  judgment  at  some  length.  The  complaint  con- 
tained two  counts.  The  second  was  for  money  had  and  received 
to  the  plaintiff's  use.  The  first  set  out  the  facts  in  detail,  stating 
a  liability  which  might  be  considered  as  resulting  from  the 
tortious  acts  of  the  defendant,  or  might  be  regarded  as  arising 
from  an  implied  contract,  but  omitting  to  aver  any  promise.  The 
defendant  demurred  on  the  ground  that  two  causes  of  action  had 
been  improperly  joined,  one  on  contract,  and  the  other  for  a 
tort,  —  an  injury  to  property.  The  plaintiff,  in  answer  to  this 
position,  claimed  that  he  could  elect  under  the  circumstances  to 
sue  either  for  tort  or  on  contract,  and  that  the  first  cause  of 
action  should  be  treated  as  of  the  latter  kind,  so  that  there  was 
no  misjoinder.  The  court,  however,  entirely  rejected  this  claim  ; 
and  after  stating  that  the  ancient  assumpsit  and  case  were  in 

1  Wills  V.  Pacific  R.  R.,  35  Mo.  164.  3  wills  v.  Wills,  34  Ind.  106,  107,  108. 
The  allegation  of  a  jierformance  at  the  See  the  opinion  quoted  at  large,  supra, 
request  of  an  agent  of  the  defendant  was     §  517,  note. 

insufficient,  being  matter  of  evidence  only.  *  Gwaltney  v.  Cannon,  31  Ind.  227. 

2  Higgins  V.  Germaine,  1  Mont.  230. 


580  CIVIL   REMEDIES. 

many  instances  concurrent  remedies  for  injuries  to  personal 
property ;  that  in  assumpsit  the  pleader  must  always  have 
alleged  that  the  defendant  "  undertook  and  promised,"  &c.,  and 
a  breacli  of  that  promise,  while  in  case  the  declaration  was  sub- 
stantially the  same  except  that  the  allegation  of  an  undertaking 
and  promise  was  omitted ;  that  in  the  first  count  this  averment  is 
wanting,  aiid  "it  is  therefore  a  count  in  case,''  —  proceeded  as  fol- 
lows: "  If  the  plaintiff  is  right  in  supposing  that  the  law  implied 
a  promise  by  the  bank  not  to  satisfy  the  judgment  after  it  was 
assigned  to  him,  he  was  bound  to  allege  that  the  bank  under- 
took and  promised  not  to  satisfy,  &c.,  in  order  to  make  it  a  count 
on  contract.  .  .  .  The  codifiers,  while  proposing  to  abolish  the 
distinction  between  forms  of  action,  found  it  impossible  or  im- 
practicable in  many  cases  to  effect  that  object ;  and  this  case  illus- 
trates their  failure  in  at  least  one  class  of  cases.  When  case 
and  assumpsit  were  at  the  common  law  concurrent  remedies,  the 
form  of  action  that  the  pleader  selected  was  determined,  as  I 
have  shown,  by  the  insertion  or  omission  from  the  declaration  of 
the  allegation  that  the  defendant  '  undertook  and  promised.'  This 
riu'ht  of  selection  remains ;  and  whether  the  action  is  tort  or 
assumpsit,  must  be  determined  by  the  same  criterion.  If  this  is 
not  so,  then  the  right  of  election  is  taken  away.  If  taken  away, 
which  of  the  two  is  left  ?  An  action  on  contract  cannot  be 
joined  with  one'  in  tort.  How  are  we  to  determine  whether  the 
action  is  one  on  contract  or  in  tort,  unless  the  pleader  by  aver- 
ment alleges  the  making  of  the  contract,  and  demands  damages 
for  a  breach  in  the  one  case,  or  by  the  omission  of  such  an  aver- 
ment makes  it  an  action  in  tort?  I  know  of  no  more  certain  or 
convenient  criterion  by  which  to  determine  the  class  to  which  a 
cause  of  action  belongs  than  the  one  suggested.  If  some  such 
rule  is  not  established,  the  question  of  misjoinder  will  arise  in 
every  case  in  which  at  the  common  law  assumjDsit  and  case  weie 
concurrent  remedies."  ^ 

§  540.  It  is  very  evident  from  the  foregoing  collection  of  deci- 
sions that  the  courts  have,  by  an  overwhelming  j)reponderance  of 
authority,  accepted  the  simple  requirement  of  the  codes,  and 

'  Booth   V.  Farmers'  and  Mechanics'  cases  of  Farron  v.  Sherwood  and  Cropsey 

Bank,  1  N.  Y  S.  C.,45,  49,  50,  per  MuUin  v.   Sweeney,  which  are   decisive   of  the 

J.     It  is  very  remarkable  that  tiie  judge  question  involved, 
makes  no  reference  whatever  to  tiie  prior 


ALLEGATIONS   OF   IMPLIED   PROMISES.  581 

have  not  destroyed  its  plain  import  by  borrowine^  the  notion  of  a 
fictitious  promise  from  the  common-law  theory  of  pleading.  The 
practical  rule  may  be  considered  as  settled,  that,  in  all  instances 
where  the  right  of  action  is  based  upon  a  duty  or  obligation  of 
the  adverse  party  which  the  common  law  denominates  an  implied 
contract,  it  is  no  longer  necessary  to  aver  a  promise,  but  it  is 
enough  to  set  out  the  ultimate  facts  from  which  the  promise 
would  have  been  inferred.  This  being  so,  we  must  go  a  step 
farther.  If  it  is  not  necessary  to  make  such  an  allegation,  then 
it  is  not  proper  to  do  so  ;  although  some  of  the  judicial  opinions, 
from  a  failure  to  apprehend  the  true  grounds  of  the  rule,  would 
seem  to  permit,  while  they  do  not  require,  the  averment.  A 
promise  need  not  be  alleged  because  none  was  ever  made :  the 
facts  constituting  the  cause  of  action  are  alone  to  be  stated,  and 
this  promise  is  not  one  of  those  facts  ;  it  is  simply  a  legal  infer- 
ence, contrived  for  a  very  technical  purpose  to  meet  the  require- 
ments of  form  in  the  ancient  legal  actions.  The  same  reason 
which  shows  that  the  averment  is  unnecessary  demonstrates  that 
it  is  improper,  that  it  violates  a  fundamental  doctrine  of  the  new 
theory ;  and  if  an  harmonious  system  is  ever  to  be  constructed 
.  upon  the  basis  of  the  reform  legislation,  this  doctrine  should  be 
strictly  enforced. 

§  541.  The  only  recent  case  which  is  in  direct  conflict  with 
these  views  is  the  one  last  quoted.  Booth  v.  Farmers'  and  Me- 
chanics' Bank;  and  it  seems  to  demand  some  comment.  Perhaps 
there  cannot  be  found  in  the  current  reports  a  more  striking 
example  of  exalting  form  above  substance,  and  of  repealing  an 
express  statutory  provision  by  judicial  construction,  than  is 
shown  in  this  decision.  The  learned  judge  virtually  admits  that 
the  text  of  the  code  is  opposed  to  his  conclusions,  when  he 
assumes  that  the  codifiers  failed  to  acccomplish  the  results  which 
they  intended.  It  may  be  remarked  that  he  speaks  of  the  stat- 
ute as  though  it  were  entirely  the  work  of  the  "  codifiers,"  and 
he  seems  to  ignore  the  authority  of  the  legislature  which  made  it 
a  law.  But  are  the  common-law  notion  of  an  implied  undertak- 
ing and  the  arbitrary  requisite  of  alleging  this  fictitious  promise 
such  necessary  conceptions,  are  they  so  involved  in  the  essential 
nature  of  jurisprudence,  that  it  is  impossible  or  impracticable  for 
the  legislature  to  change  or  to  abolish  them  ?  The  very  sugges- 
tion is  its  own  answer.     Nothing  in  our  ancient  law  was  more 


582  CIVIL    REMEDIES. 

thoroughly   technical  and    arl)itrary,    more    completely   a   mere 
matter  of  form,   without  even   the   shadow  of  substantial  and 
necessary  existence,  than  this  very  notion  of  a  certain  kind  of 
legal  liability  being  represented  as  arising  from  an  implied  prom- 
ise, and  the  accompanying  rule  that  the  promise  thus  imagined 
must  be 'averred  as  though  it  were  actually  made.     It  was  shown 
in  a  former  part  of  this  section  that  the  action  of  assumpsit  was 
not  even  invented  as  an  instrument  by  which  to  enforce  the  lia- 
bility thus  conceived  of;  but  the  fiction  of  an  implied  promise  was 
itself  contrived  in  order  that  the  liability  might  be  enforced  by 
the  already  existing  action  of  assumpsit,  in  which  the  allegation 
of  a   promise   was   the  distinctive  feature.     The    error   of   the 
opinion  under  review  is,  that  it  treats  these  matters  of  arbitrary 
form,  these  fictitious  contrivances  of  the  old  pleaders,  as  though 
they  subsisted  in  the   nature  of  things,   and  were  beyond  the 
reach  of  legislative    action.     The  difficulty,  suggested   by   the 
learned  judge,  of  being  unable  to  distinguish  between  an  action 
of  tort  and  one  of  contract,  in  order  that  an  election  might  be 
made  between  them,  exists  only  in  imagination.     If  we  will  look 
at  the  matter  as  it  really  is,  throwing  aside  the  old  technicalities 
and  fictions,  there  is  plainly  no  necessity  for  any  such  distinction. 
If  the  pleader  unites  a  cause  of  action  upon  express  contract  with 
a  cause  of  action  consisting    of   facts,  from  which   under   the 
former  system  a  promise  might  have  been  implied,  he  has  already 
made  his  election,  —  all  the  election  that  is  needed,  —  and  there 
would  be  no  possibility  of  any  subsequent  change  in  or  depart- 
ure from  this  original  theory  of  his  complaint.     The  only  prac- 
tical difference  which  could  ever  arise  ft-om  treating  his  second 
cause  of  action  as  though  founded  upon  tort  would  be  the  power 
sometimes  given  of  arresting  the  defendant  either  on  mesne  or 
final  process,  and  this  power  would  plainly  have  been  surren- 
dered.    To  sum  up  the  foregoing  criticism,  the  whole  course  of 
reasoning  pursued  by  the  learned  judge  assumes  that  the  most 
technical  arbitrary  and  fictitious  distinctions  between  the  ancient 
forms  of  action  are  still  subsisting  ;  it  does  not  merely  ignore  the 
legislation  which  has  abrogated  those  distinctions,  but  it  expressly 
denies  the  ability  of  the  legislature  to  accomplish  such  a  result. 
'This  is  not  interpreting,  it  is  repealing,  a  statute.     I  have  dwelt 
upon  this  case  longer  perhaps  than  it  intrinsically  merits ;  but  I 
have  done  so  because  the  principles  announced  in  it,  if  generally 


THE   COMMON   COUNTS. 


583 


followed,  would  sap  the  very  foundations  of  the  reformed  pro- 
cedure, and  prevent  the  erection  of  any  harmonious  and  sym- 
metrical system  upon  the  basis  of  its  fundamental  doctrines. 

§  542.  (2)  Whether  a  complaint  or  petition,  substantially  the 
same  in  its  form  and  its  allegations  with  the  old  common  or  gen- 
eral count  in  assumpsit,  is  in  accordance  with  the  fundamental 
principles  of  the  new  procedure,  and  can  now  be  regarded  as  a 
good  pleading.  The  courts  have  almost  unanimously  answered 
this  question  in  the  affirmative,  and  have  held  that  such  com- 
plaints or  petitions  sufficiently  set  forth  a  cause  of  action  in  the 
cases  where  the  declarations  which  they  imitate  would  have  been 
proper  under  the  former  practice.^     Notwithstanding  the  impos- 


1  I  have  collected  in  this  note  the  lead- 
ing cases  which  sustain  the  position  in  the 
text.  Allen  v.  Patterson,  7  N.  Y  476  ; 
Meagher  v.  Morgan,  3  Kans.  372 ;  Clark 
V.  Fensky,  3  Kans.  389  ;  Carroll  v.  Paul's 
Executors,  16  Mo.  226  ;  Brown  v.  Perry, 
14  Ind.  32;  Kerstetter  v.  Raymond,  10 
Ind.  199  ;  Farron  v.  Sherwood,  17  N.  Y. 
22?,  229  ;  Hosley  v.  Black,  28  N.  Y.  438 ; 
Hurst  V.  Litchfield,  39  N.  Y.  377  ;  Green 
V.  Gilbert,  21  Wise  395;  Evans  v.  Harris, 
19  Barb.  416 ;  Grannis  v.  Hooker,  29 
Wise.  65,  66,  67 ;  Cudlipp  v.  Whipple,  4 
Duer,  610  ;  Bates  v.  Cobb,  5  Bosw.  29 ; 
Adams  v.  Holley,  12  How.  Pr.  326  ;  Betts 
V.  Bache,  14  Abb.  Pr.  279;  Sloman  v. 
Schmidt,  8  Abb.  Pr.  5  ;  Goelth  v.  White, 
35  Barb.  76  ;  Stout  v.  St.  Louis,  &c.  Co., 
52  Mo.  342;  Curran  v.  Curran,  40  Ind. 
473;  Johnson  v.  Kilgore,  39  Ind.  147; 
Bouslog  V.  Garrett,  39  Ind.  838  ;  Wolf  v. 
Schofield,  38  Ind.  175,  181 ;  Noble  v.  Bur- 
ton, 38  Ind.  206  ;  Higgins  v.  Germaine,  1 
Mont.  230  ;  Gwaltney  v.  Cannon,  31  Ind. 
227  ;  Fort  Wayne,  &c.  R.  R  v.  McDonald, 
48  Ind  241,243;  Raymond  i?.  Hanford, 
6  N.  Y.  S.  C.  312;  Fells  v.  Vestvali,  2 
Keyes,  152;  Pavisich  v.  Bean,  48  Cal. 
364;  Wilkins  r.  Stidger,  22  Cal.  231; 
Abadie  v.  Carrillo,  32  Cal.  172  ;  Merritt  v. 
Gliddon,  39  Cal.  559, 564.  The  exact  posi- 
tion of  the  courts  in  reference  to  this 
question  will  be  shown  by  a  quotation 
from  a  few  of  these  decisions.  The  lead- 
ing case  is  Allen  v.  Patterson.  The  action 
was  for  the  price  of  goods  ;  and  the  com- 
plaint was  in  form  a  count  in  indebitatus 
assumpsit  for  gouds  sold  and   delivered. 


Jewett  J.  said  (p.  478):  "The  code  re- 
quires that  the  complaint  shall  contain  a 
plain  and  concise  statement  of  the  facts 
constituting  the  cause  of  action.  Every 
fact  which  the  plaintiff  must  prove  to 
enable  him  to  maintain  his  suit,  and 
which  the  defendant  has  a  right  to  con- 
trovert in  his  answer,  must  be  distinctly 
averred  or  stated.  The  rule  of  pleading 
in  an  action  for  a  legal  remedy  is  the 
same  as  formerl}'  in  this,  that  facts,  and 
not  the  evidence  of  facts,  must  be  plead- 
ed." After  an  analysis  of  the  complaint, 
he  reaches  the  conclusion  tliat  its  aver- 
ments are  in  conformity  with  these  gen- 
eral principles.  He  does  not  notice, 
however,  the  feature  whicli,  above  all 
others,  distinguished  this  form  of  declara- 
tion in  assumpsit,  —  namely,  that  the 
legal  effect  of  the  facts  was  stated,  instead 
of  the  actual  facts  of  the  transaction  ;  nor 
does  he  advert  to  the  nature,  as  a  pure 
conclusion  of  law,  of  the  most  important 
allegation,  that "  the  defendant  is  indebted 
to  the  plaintiff."  In  Grannis  v.  Hooker, 
29  Wise.  65,  the  comprint  was  in  form  a 
common  count  for  money  had  and  re- 
ceived;  and,  on  the  trial,  the  plaintiff 
offered  to  prove  that  he  was  induced  to 
pay  over  money  to  the  defendant  by 
the  latter's  false  and  fraudulent  repre- 
sentations in  the  sale  of  certain  lands, 
which  was  now  sought  to  be  recovered. 
This  evidence  was  rejected ;  and,  on 
the  plaintifi"s  appeal,  the  court,  by  Cole  J., 
said  (pp.  66,  67) :  "  The  complaint  con- 
tains what,  under  the  former  system  of 
pleading,   would   be   called   a  count   for 


584 


CIVIL   REMEDIES. 


ing  array  of  judicial  autliority  shown  by  the  citations  in  the 
foot-note,  the  courts  of  one  or  two  States  have  refused  to  follow 
this  course  of  decision,  and  have  pronounced  such  forms  of  com- 
plaint or  petition  to  be  in  direct  conflict  with  the  correct  prin- 
ciples of  pleading  established  by  the  codes.  Although  these  few 
cases  cannot  be  regarded  as  shaking,  or  as  throwing  any  doubt 
upon,  the  rule  so  firmly  established  in  most  of  the  States,  they 
may  be  properly  cited  in  order  that  all  the  light  possible  may  be 
thrown  upon  this  particular  question  of  interpretation.^ 


money  had  and  received.  ...  It  is 
claimed  by  the  defendant  that  all  the 
facts  in  respect  to  the  alleged  fraud 
should  have  been  distinctly  stated  in  the 
complaint,  otherwise  the  j)laintifl'  is  not 
entitled  to  prove  them.  On  the  other 
hand,  it  is  claimed  that  all  it  is  necessary 
the  complaint  sliould  contain  is  substan- 
tially an  allegation  that  the  defendant  has 
received  a  certain  amount  of  money  to 
the  use  of  the  plaintiff,  as  in  the  old  form 
of  declaration  in  indebilatus  assicmpsit.  We 
are  inclined  to  sanction  the  latter  view, 
and  to  hold  that  the  facts,  which  in  the  judg- 
ment of  the  law  create  the  indebtedness  or  lia- 
hilitji,  need  not  he  set  forth  in  the  comphiint." 
The  complaints  in  several  of  the  Indiana 
cases  above  cited  were  as  follows  :  In 
Curran  v.  Curran,  "  the  plaintiff  says  that 
the  defendant  is  indebted  to  him  in  the 
sum  of,  &c.,  for  the  following-described 
real  estate  sold  and  conveyed  to  him  by 
the  plaintiff  [description] ;  that  said  sum 
is  now  due  and  wholly  unpaid,  for  which 
the  plaintiff  demands  judgment,"  &c. ;  in 
Johnson  v.  Kilgore,  "  that  said  defendant 
is  indebted  to  him  in  the  sum  of,  &c.,  for 
work  and  labor  done  and  performed,  and 
materials  furnished,  wherefore."  &c. ;  in 
Bouslog  V.  Garrett,  "  that  on,  &c.,  the  de- 
fendant was  indebted  to  the  plaintiff"  in 
the  sum  of,  &c.,  for  money  found  due 
from  said  defendant  to  the  plaintiff"  upon 
an  account  then  stated  between  them, 
which  said  sum  remains  unpaid,  where- 
fore," &c.;  in  Wolf  v.  Schofield,  "  tiiat 
the  defendant  is  indebted  to  him  in  the 
sum  of,  &c.,  for  work  and  labor  done  and 
performed,  and  for  materials  furnished 
by  tiie  plaintiff" for  tiie  defendant  at  his  in- 
stance and  request,  wherefore,"  &c.  Tliese 
and  otiier  similar  complaints  were  sus- 
tained by  tlie  courts  of  tliat  State,  not 


upon  any  discussion  of  general  principles, 
but  because  they  were  in  accordance  with 
certain  short  forms  prescribed  by  the  leg- 
islature, and  declared  by  it  to  be  sufficient. 
They  plainly  violate  every  essential  re- 
quirement of  the  code  itself. 

1  Foerster  v.  Kirkpatrick,  2  Minn.  210, 
212;  Bowen  v.  Emmerson,  3  Oreg.  4-52. 
The  complaint  in  the  first  of  these  cases 
was,  "  that  the  above-named  defendants 
are  justly  indebted  to  the  plaintiff"  in  the 
sum  of,  &c.,  on  account  for  goods,  wares, 
and  merchandise  sold  and  delivered  by 
the  plaintiff"  to  the  defendants  at  the  spe- 
cial instance  and  request  of  tlie  defend- 
ants, wherefore,"  &c.  ;  and  it  will  be 
noticed  that  this  is  fuller  than  several  of 
the  forms  before  quoted,  since  it  alleges  a 
request.  In  sustaining  a  demurrer  to  this 
complaint,  the  court  held  it  defective,  be- 
cause it  contained  (1)  no  statement  of  the 
time  of  sale,  and  (2)  no  averment  that 
the  goods  were  of  the  price  or  value  of  the 
sum  mentioned,  or  that  the  defendants 
promised  to  pay  that  sum,  and  laid  down 
the  general  doctrine  in  the  following  man- 
ner: "In  actions  for  goods  sold  and  de- 
livered, it  is  essential  that  one  or  the 
other  of  these  allegations  should  be  made. 
Without  it  the  allegation  of  indebtedness 
is  a  mere  conclusion  of  law  unsupported 
by  any  fact.  Tiie  defendants'  liability 
grows  out  of  the  fact  that  {lie  goods  were 
either  worth  the  amount  of  the  claim,  or 
else  that  they  promised  to  pay  that 
amount.  If  they  were  worth  the  amount, 
the  law  implies  a  promise.  Without  one 
or  the  other  of  these  allegations,  there 
appears  no  consideration  to  support  the 
pretended  indebtedness."  In  Bowen  v. 
Emmerson  tlie  Supreme  Court  of  Oregon 
pronounced  the  use  of  the  general  count 
in  assumpsit  to  be  entirely  inconsistent 


THE    COMMON    COUNTS. 


585 


§  543.  Not  only  have  the  courts  in  this  manner  sanctioned  the 
use  of  the  common  counts  as  appropriate  modes  of  setting  forth 
the  plaintiff's  cause  of  action ;  they  have  also  held  that  another 
rule  of  the  old  practice  is  still  retained  by  the  codes.  The  rule 
thus  declared  to  be  in  force  is  the  following- :  When  the  plaintiff 
has  entered  into  an  express  contract  with  the  defendant,  and  has 
fully  performed  on  his  part,  so  that  nothing  remains  unexecuted 
but  the  defendant's  obligation  to  pa}'',  he  may  if  he  please  sue 
upon  the  defendant's  implied  promise  to  riiake  such  payment, 
rather  than  upon  the  express  undertaking  of  the  original  con- 
tract ;  and  to  that  end  he  may  resort  to  a  complaint  or  petition 
identical  with  the  ancient  common  counts ;  except,  as  has  already 
been  shown,  the  averment  of  a  promise  may,  and  according  to 
the  better  opinion  should^  be  omitted.^    This  doctrine  is  supported 


with  the  reformefl  tlieory  of  pIeadin<T,  and 
expressly  refused  to  follow  the  decision 
made  in  Allen  v.  Patterson.  The  opinion 
is  a  clear  and  very  strong  argument  in 
favor  of  the  simple  and  natural  modes  of 
pleading  provided  by  the  codes. 

1  Farron  v.  Sherwood,  17  N.  Y.  227, 
229  ;  Hosly  v.  Black,  28  N.  Y.  438  ;  Hurst 
V.  Litchfield,  39  N.  Y.  377  ;  Atkinson  v. 
Collins,  9  Abb.  Pr.  353 ;  Evans  v.  Harris, 
19  Barb.  416  ;  Green  v.  Gilbert,  21  Wise. 
395,  an  action  to  recover  for  the  part  pei-- 
formance  of  an  express  contract,  the 
plaintiff  having  been  prevented  by  sick- 
ness from  completing ;  Carroll  v.  Paul's 
Executors,  16  Mo.  226;  Brown  v.  Perry, 
14  Ind.  32  ;  Kerstetter  v.  Raymond,  10 
Ind.  199;  Stout  v.  St.  Louis  T.  Co.,  52 
Mo.  342 ;  Friermuth  v.  Friermuth,  46 
Cal.  42 ;  Raymond  v.  Hanford,  6  N.  Y. 
S.  C.  312 ;  Fells  v.  Vestvali,  2  Keyes, 
152.  In  Sussdorf  v.  Schmidt,  55  N.  Y. 
819,  324,  the  complaint  alleged  an  agreed 
compensation  for  services ;  but,  at  the 
trial,  the  plaintiff  was  permitted  to  prove 
their  value  as  upon  a  quantum  meruit,  and 
this  was  held  no  error,  or  at  most  an  im- 
material variance ;  but,  per  contra,  in 
Davis  V.  Mason,  3  Oreg.  154,  it  was  held 
that  in  an  action  for  services,  the  com- 
plaint stating  an  express  contract  to  pay 
a  stipulated  sum,  the  plaintiff  cannot  prove 
and  recover  their  value  upon  a  quantum 
meruit.  In  Farron  v.  Sherwood,  which  is, 
perhaps,  the  leading   case,  the  doctrine 


was  thus  announced  by  Strong  J.  (p.  229) : 
"  The  case  is  therefore  within  the  well- 
settled  rule,  that  when  there  is  a  special 
agreement,  and  the  plaintiff  has  performed 
on  his  part,  the  law  raises  a  duty  on  the 
part  of  the  defendant  to  pay  the  price 
agreed  upon,  and  the  plaintiff  may  count 
either  upon  this  implied  assumpsit,  or  on 
the  express  agreement.  A  new  cause  of 
action,  upon  such  performance,  arises  from 
this  legal  duty,  in  like  manner  as  if  the 
act  done  had  been  done  upon  a  general 
request,  without  an  express  agreement. 
This  rule  is  not  affected  by  the  code. 
The  plaintiff  might,  as  he  has  done,  rest 
his  action  on  the  legal  duty,  and  his  com- 
plaint is  adapted  to  and  contains  every 
necessary  element  of  that  cause  of  action." 
In  Kerstetter  v.  Raymond,  the  Supreme 
Court  enumerated  the  instances  in  which 
the  general  or  common  count  was  a  proper 
means  of  suing  upon  an  express  contract 
between  the  parties,  and  declared  that 
they  were  all  retained  by  the  codes. 
These  instances  are,  (1)  when  the  plain- 
tiff has  fully  executed,  and  the  time  of 
payment  is  passed,  the  measure  of  dam- 
ages being  the  stipulated  price  ;  (2)  when 
the  special  contract  has  been  altered  or 
deviated     from     by    common     consent ; 

(3)  when  the  plaintiff  has  performed  a 
part,  and  has  been  prevented  from  per- 
forming the  whole  by  the  act  of  the  de- 
fendant,   or    by    the    act    of    the    law ; 

(4)  when  the  plaintiff  has  not  fully  com- 


586  CIVIL   REMEDIES. 

by  numerous  decisions  in  various  States,  and  it  seems  to  be 
regarded  as  still  operative  in  all  the  circumstances  to  which  it 
was  applicable  under  the  former  system.  ^ 

§  544.  In  the  face  of  this  overwhelming  array  of  authority,  it 
may  seem  almost  presumptuous  even  to  suggest  a  doubt  as  to  the 
correctness  of  the  conclusions  that  have  been  reached  with  so  much 
unanimity.  I  cannot,  however,  consistently  with  my  very  strong 
convictions,  refrain  from  expressing  the  opinion,  that,  in  all  these 
rulings  concerning  the  use  of  the  common  counts,  the  courts 
have  overlooked  the  fundamental  conception  of  the  reformed 
pleading,  and  have  abandoned  its  essential  principles.  This 
position  of  inevitable  opposition  was  clearly,  although  uninten- 
tionally, described  by  one  of  the  judges  in  language  already 
quoted,  when  he  says,  "  We  are  inclined  to  sanction  the  latter 
view,  and  to  hold  that  the  facts  which,  in  the  judgment  of  the 
law,  create  the  indebtedness  or  liability,  need  7iot  be  set  forth  in 
the  complaint."  Now,  the  "  facts  which  create  the  liability  "  are 
the  "facts  constituting  the  cause  of  action"  which  the  codes 
expressly  require  to  be  alleged  ;  the  two  expressions  are  synony- 
mous ;  and  the  direct  antagonism  between  what  the  court  says 
need  not  be  done,  and  what  the  statute  says  must  be  done,  is 
patent.  But  the  objection  to  the  doctrine  of  these  decisions 
does  not  chiefly  rest  upon  such  verbal  criticism  ;  it  is  involved  in 
the  very  nature  of  the  new  theory  when  contrasted  with  the  old 
methods.  In  every  species  of  the  common  count,  the  averments, 
by  means  of  certain  prescribed  formulas,  presented  what  the 
pleader  conceived  to  be  the  legal  effect  and  operation  of  the 
facts  instead  of  the  facts  themselves,  and  the  most  important  of 
them  was  always  a  pure  conclusion  of  law.  The  count  for 
money  had  and  received  well  illustrates  the  truth  of  this  propo- 
sition. In  the  allegation  that  "  the  defendant  was  indebted  to 
th^  plaintiff  for  money  had  and  received  by  him  to  the  plaintiff's 
use,"  the  distinctive  element  was  the  phrase  "  money  had  and 
received  to  the  plaintiff's  use."  This  technical  expression  was 
not  the  statement  of  a  fact,  in  the  sense  in  which  that  word  is 
used  by  the  codes  ;  if  not  strictly  a  pure  conclusion  of  law,  it 

plied  with  tlie  terms  of  the  contract,  but,  versally  accepted  in  the  broad  terms  as 

professing  to  act  under  it,  has  done  for  here  stated;  but  it  is  the  settled  rule  in 

or  delivered   to   the   other    party   some-  Indiana.     See  Lomax  v.  Bailey,  7  Blackf. 

thing  of  value  to  him  which  he  has   ac-  599. 
cepted.     This   last  doctrine   is   not  uni- 


THE   COMMON   COUNTS.  587 

was  at  most  a  symbol  to  which  a  certain  peculiar  meaning  had 
been  given.  The  circumstances  under  which  one  person  could 
be  liable  to  another  for  money  had  and  received  were  very 
numerous,  embracing  contracts  express  or  imj)lied,  and  even 
torts  and  frauds.  The  mere  averment,  that  the  defendant  was 
indebted  for  money  had  and  received,  admitted  any  of  these 
circumstances  in  its  support,  but  it  did  not  disclose  nor  even  sug- 
gest the  real  nature  of  the  liability,  the  actual  cause  of  action 
upon  which  the  plaintiff  relied.  The  reformed  theory  of  plead- 
ing was  expressly  designed  to  abrogate  forever  this  general 
mode  of  averment,  which  concealed  rather  than  displayed  the 
true  cause  of  action  ;  it  requires  the  facts  to  be  stated,  the  facts 
as  they  exist  or  occurred,  leaving  the  law  to  be  determined  and 
applied  by  the  court.  The  same  is  true  of  the  common  count 
in  every  one  of  its  phases.  A  careful  analysis  would  show  that 
the  important  and  distinctive  averments  were  either  naked  con- 
clusions of  law,  or  the  legal  effect  and  operation  of  the  facts 
expressed  in  technical  formulas  to  which  a  j^articular  meaning 
had  been  attached,  and  which  were  equally  applicable  to  innu- 
merable different  causes  of  action.  The  rule  which  permitted 
the  general  count  in  assumpsit  to  be  sometimes  used  in  an  action 
upon  an  express  contract  was  even  more  arbitrary  and  technical, 
and  was  wholly  based  upon  fictitious  notions.  The  conception  of 
a  second  implied  promise  resulting  from  the  duty  to  perform  the 
original  express  promise  has  no  foundation  whatever  in  the  law 
of  contract,  but  was  invented,  with  great  subtlety,  in  order  to 
furnish  the  ground  for  a  resort  to  general  assumpsit  instead  of 
special  assumpsit  in  a  certain  class  of  cases.  All  the  reasons  in 
its  support  were  swept  away  by  the  legislation  which  abolished 
the  distinctions  between  the  forms  of  action,  since  it  was  in  such 
distinctions  alone  that  those  reasons  had  even  the  semblance  of 
an  existence.  My  space  will  not  permit  this  discussion  to  be 
pursued  any  farther,  although  much  more  might  be  added  to  the 
foregoing  suggestions.  If  the  principles  of  pleading  heretofore 
developed  in  the  text  are  true  expressions  of  the  reformed  theory, 
the  legislature  certainly  intended  that  the  facts  constituting  each 
cause  of  action  should  be  alleged  as  they  actually  happened,  not 
by  means  of  any  technical  formulas,  but  in  the  ordinary  language 
of  narrative  ;  and  it  is,  as  it  appears  to  me,  equally  certain  that 
the  use  of  the  common  counts  as  complaints  or  petitions  is  a 
violation  of  these  fundamental  principles. 


688  CIVIL   REMEDIES. 

§  545.  From  the  few  general  principles  which  thus  constitute 
the  simple  foundation  of  the  reformed  pleading,  there  result  as 
corollaries  certain  subordinate  doctrines  and  practical  rules,  to 
the  development  and  illustration  of  which  the  remaining  portion 
of  the  present  section  will  be  devoted.  The  immediate  object  of 
these  special  rules  is  to  enforce  in  complaints  or  petitions  and 
answers  a  conformity  with  the  essential  principles  upon  which 
the  system  is  based,  and  at  the  same  time  to  procure  a  decision 
of  judicial  controversies  upon  their  merits,  and  not  upon  any 
mere  technical  requirements  as  to  form  and  mode.  They  relate 
to  the  practical  methods  which  must  be  pursued  in  setting  forth 
the  causes  of  action  and  the  defences  ;  and  the  particular  subjects 
with  which  they  deal  are  (1)  insufficient,  incomplete,  or  imper- 
fect allegations,  (2)  immaterial  and  redundant  allegations, 
(3)  the  doctrine  that  the  cause  of  action  or  the  defence  proved 
must  correspond  with  the  one  alleged.  Connected  "with  and 
subsidiary  to  these  topics  are  the  remedies  provided  for  each,  and 
particularly  that  of  amendment,  which  the  codes  expressly 
authorize  with  the  utmost  freedom,  and  also  the  power  of 
electing  between  the  two  modes  of  setting  forth  the  same  cause 
of  action  under  certain  circumstances  either  as  ex  contractu  or 
as  ex  delicto.  Preliminary,  however,  to  the  discussion  thus  out- 
lined, I  shall  state  and  very  briefly  explain  a  principle  which 
will  necessarily  affect  its  whole  course,  and  largely  determine  its 
results,  —  the  principle  of  construction  as  applied  to  the  plead- 
ings themselves. 

§  546.  It  was  a  rule  of  the  common  law  firml}^  established  and 
constantly  acted  upon,  —  that,  in  examining  and  deciding  all 
objections  involving  either  form  or  substance,  every  pleading  was 
to  be  construed  strongly  against  the  pleader  ;  nothing  could  be 
presumed  in  its  favor ;  nothing  could  be  added,  or  inferred,  or 
supplied  by  implication,  in  order  to  sustain  its  sufficiency.  This 
harsh  doctrine,  unnecessary  and  illogical  in  its  original  concep- 
tion, and  often  pushed  to  extremes  that  were  simplj'  absurd,  was 
the  origin  of  the  technicality  and  excessive  precision,  which, 
more  than  any  other  features,  characterized  the  ancient  system  in 
its  condition  of  highest  development.  All  the  codes  contain  the 
following  provision,  or  one  substantially  the  same  :  "  In  the  con- 
struction of  a  pleading,  for  the  purpose  of  determining  its  effect, 
its  allegations  shall  be  liberally  construed  with  a  view  to  substan- 


LIBERAL   CONSTRUCTION    OF   PLEADINGS.  589 

tial  justice  between  the  parties."  The  evident  intent  of  the 
legislature  in  this  clause  was  to  abrogate  at  one  blow  the  ancient 
dogma,  and  to  introduce  in  its  place  the  contrary  principle  of  a 
liberal  and  equitable  construction ;  that  is,  a  construction  in 
accordance  with  the  general  nature  and  design  of  the  pleading  as 
a  whole.  This  mode  of  interpretation  does  not  require  a  leaning 
in  favor  of  the  pleader  in  place  of  the  former  tendency  against 
him  ;  it  demands  a  natural  spirit  of  fairness  and  equity  in  ascer- 
taining the  meaning  of  any  particular  averment  or  group  of 
averments  from  their  relation  and  connection  with  the  entire 
pleading  and  from  its  general  purpose  and  object.  The  courts 
have  uniformly  adopted  this  view  of  the  provision;  and  although 
in  particular  instances  they  may  sometimes  have  departed  from 
it,  3^et,  in  their  announcement  of  the  theory^  they  have  unani- 
mously conceded  that  the  stern  doctrine  of  the  common  law  has 
been  abolished,  and  that,  instead  thereof,  an  •  equitable  mode 
of  construction  has  been  substituted.  From  the  multitudes  of 
decisions  which  maintain  this  position  with  more  or  less  emphasis 
1  select  a  few  examples,  and  other  illustrations  will  be  subse- 
quently given. 

§  547.  The  New  York  Court  of  Appeals,  while  construing  a 
complaint,  said :  "  The  language  is  clearly  susceptible  of  this 
interpretation  ;  and  if  so,  that  interpretation  should  be  given  in 
preference  to  [another  which  was  stated].  If  the  language 
admits  of  the  latter  interpretation,  it  may  be  said  to  be  ambigu- 
ous, and  that  is  all.  It  is  not  true,  that  under  the  code,  if  there 
be  uncertainty  in  respect  to  the  natiu'e  of  the  charge,  it  is  to  be 
construed  strictly  against  the  pleader.  B}'  §  159  in  the  construc- 
tion of  a  pleading,  its  allegationsj  must  be  liberally  construed  with 
a  view  to.  substantial  justice."  ^  The  language  used  by*  the 
Supreme  Court  of  Wisconsin  in  a  similar  case,  is  still  stronger : 
"  Contrary  to  the  common-law^  rule  every  reasonable  intendment 
and  presumption  is  to  be  made  in  favor  of  the  pleading."  ^  The 
same  interpretation  is  given  to  the  provision  in  Iowa ;  the  old 
dogma  of  leaning  against  the  pleader  is  abandoned,  and  a  liberal 
and  equitable  construction  is  now  the  rule.^     The  practical  force 

1  Olcott  V.  Carroll,  39  N.  Y.  486,  438.  is  not  made  until  the  trial,  after  issues 

^  Morse  v.  Oilman,  16  Wise.  504,  507.  have  been  formed  by  an  answer. 

See   also    Hazleton   v.    Union  Bank,    32  3   Siiank  v.  Teeple,  33  Iowa,  189,  191  ; 

Wise.  34,  42,  43,  which  holds  that  greater  Foster  v.  Elliott,  33  Iowa,  216,  223  ;  Gray 

latitude  of  presumption  is   admitted   to  f.  Coan,  23  Iowa,  344 ;  Doolittle  i).  Green, 

sustain  a  complaint,  when  objection  to  it  32  Iowa,  123,  124. 


590  CIVIL    REMEDIES. 

and  operation  of  this  principle,  and  how  much  effect  it  actually 
produces  in  the  judicial  process  of  construing  pleadings,  can  best 
be  seen  by  an  examination  of  the  decisions  in  which  it  has  been 
invoked.  A  few  of  them  have  therefore  been  selected,  and  placed 
in  the  foot-note.^  In  a  very  small  number  of  cases,  however,  the 
courts  seem  to  have  overlooked  this  change  made  by  the  statute, 
and  have  expressly  declared  that  the  construction  must  be  adverse 
to  the  pleader,  thus  recognizing  the  ancient  rule  as  still  in  force  ;2 
while  in  some  others  the  judicial  action  was  clearly  based  upon 
that  old  doctrine,  although  it  was  not  formally  announced  in  the 
opinions.^  Under  the  light  of  this  beneficent  but  new  principle, 
that  pleadings  are  to  be  construed  fairly,  equitably,  and  liberally, 
with  a  view  to  promote  the  ends  of  justice,  and  not  enforce  any 
arbitrary  and  technical  dogmas,  I  shall  proceed  to  consider,  in 
the  order  already  indicated,  the  several  practical  rules  mentioned 
above,  which  regulate  the  manner  of  setting  forth  the  cause  of 
action  or  the  defence. 

§  5i8.  I.  Insufficient^  imi'perfect^  incomplete^  or  informal  allega- 
tions;  the  mode  of  ohjeetincf  to  and  correcting  them.  The  codes 
clearly  intend  to  draw  a  broad  line  of  distinction  between  an  entire 
failure  to  state  any  cause  of  action  or  defence,  on  the  one  side, 
which  is  to  be  taken  advantage  of  either  by  the  general  demurrer 
for  want  of  sufficient  facts,  or  by  the  exclusion  of  all  evidence  at 
the  trial,  and  the  statement  of  a  cause  of  action  or  a  defence  in 
an  insufficient,  imperfect,  incomplete,  or  informal  manner,  which 
is, to  be  corrected  by  a  motion  to  render  the  pleading  more  defi- 
nite and  certain  by  amendment.  The  courts  have,  in  the  main, 
endeavored  to  preserve  this  distinction,  but  not  always  with 
success ;  since  averments  have  sometimes  been  treated  as  merely 
incomplete,  and  the  pleadings  containing  them  have  been  sus- 
tained on  demurrer,  which  appeared  to  state  no  cause  of  action  or 
defence  whatever ;  while,  in  other  instances,  pleadings  have  been 
pronounced  wholly  defective  and  therefore  bad  on  demuirer,  or 
incapable  of  admitting  any  evidence,   the  allegations  of  which 

1  McGIasson  v.  Bradford,  7  Bush,  250,  220,  224  ;  "Wright  v.  McCormick,  67  N.  C. 
252  ;  Joiibert  v.  Carli,  26  \Visc.  594  ;   Clay     27. 

w.  Edgerton,  I'J  Uiiio  St.  54y,  su/j)a,  §535  ;  '  Por    examples,    see     Hathaway    v. 

Gunn    c.    Madigan,   28    Wise.    158,   164;  Quinby,   1  N.   Y.  S.   C.    386;    Doyle    v. 

Robson   V.   Coinstock,   8  Wise.  372,  374,  Phoenix   Ins.  Co.,  44   Cal.  264 ;  Scofield 

375  ;  iMorse  v.  Gilman,  16  Wise.  504.  v.  W'hitelegge,  49  N,  Y.  25U,  261 ;  Holmes 

2  Commouwealth    i;.    Cook,   8    Bush,  v.  Williams,  16  Minn.  164,  168. 


IMPERFECT  OR  INFORMAL  ALLEGATIONS.  691 

appear  to  have  been  simply  imperfect  or  incomplete.  It  is 
undoubtedly  difficult  to  discriminate  between  these  two  condi- 
tions of  partial  and  of  total  failure  ;  and  it  is  utterly  impossible 
to  frame  any  accurate  general  formula  which  shall  define  or 
describe  the  insufficiency,  incompleteness,  or  imperfectness  of 
averment  intended  by  the  codes,  and  shall  embrace  all  the  possi- 
ble instances  within  its  terms.  By  a  comparison  of  the  decided 
cases,  some  notion,  however,  may  be  obtained  of  the  distinction, 
recognized  if  not  definitely  established  by  the  courts,  between 
the  absolute  deficiency  which  renders  a  pleading  bad  on  demurrer 
or  at  the  trial,  and  the  incompleteness  or  imperfection  of  allega- 
tion which  exposes  it  to  amendment  by  motion  ;  and  in  this  man- 
ner alone  can  any  light  be  thrown  upon  the  nature  of  the  insuffi- 
ciency which  is  the  subject  of  the  present  inquiry. 

§  549.  The  true  doctrine  to  be  gathered  from  all  the  cases  is, 
that  if  the  substantial  facts  which  constitute  a  cause  of  action  are 
stated  in  a  complaint  or  petition,  or  can  be  inferred  by  reasona- 
able  intendment  from  the  matters  which  are  set  forth,  although 
the  allegations  of  these  facts  are  imperfect,  incomplete,  and 
defective,  such  insufficiency  pertaining,  however,  to  the  form 
rather  than  to  the  substance,  the  proper  mode  of  correction  is 
not  by  demurrer,  nor  by  excluding  evidence  at  the  trial,  but  by 
a  motion  before  the  trial  to  make  the  averments  more  definite  and 
certain  by  amendment.^     From  the  citations  in  the  foot-note,  it  is 

1  People  r.  Ryder,  12  N.  Y.  433 ;  Prin-  Russell  v.  Mixer,  42   Cal.  475;    SlaUery 

die  V.  Carutliers,  15  N.  Y.  425  ;  Flanders  v.  Hall,  43  Cal.  191  (objection  that  a  com- 

V.  McVickar,  7  Wise.  372,  377  ;  Kobson  v.  plaint  is  ambiguous  cannot  be  raised  un- 

Comstock,  8  Wise.  372,  374,  375  ;  Kuehn  r.  der    a    general    demurrer);    Blasdel    v. 

Wilson,  13  Wise.  104,  107,  108;  Morse  v.  Williams,  y  Nev.  161 ;  Smith  v.  Dennett, 

Oilman,    16    Wise.    504,    507;    Kimball  15  Minn.  81 ;  Lewis  y.  Edwards,  44  Ind. 

V.  Darling,  32  Wise.  675,  684  ;  Reeve  v.  333,  336 ;  Snowden  v.  Wilas,  19  Ind.  10  ; 

Fraker,  32  Wise.  243 ;  Hazleton  v.  Union  Lane  v.  Miller,  27  Ind.  534 ;  Johnson  v. 

Bank,  32  Wise.  34,  42,43;  Horn  i-.  Lud-  Robinson,    20   Minn.    189,    192;   Mills  v. 

ington,  28  Wise.  81,  83  (a  motion  made  Rice,  3  Neb.  76,  86,  87  ;  Trustees?;.  Odlin, 

and  granted,  —  a  good  illustration  of  de-  8  Ohio  St.  293,  296.     A  quotation  from  a 

fective    allegations  added    to)  ;    Clay   v.  few  of  these  cases  will  show   the  exact 

Edgerton,  19  Ohio    St.   549 ;    Winter   v.  position  taken  by  the  courts  in  reference 

Winter,  8  Nev.  129   (statement  of  a  ma-  to  the  extent  of  defect  which  can  and 

terial  fact  by  way  of  recital) ;  Saulsbury  must  be   cured  by  motion ;  and  I  select 

V.  Alexander,  50  Mo.  142,  144  ;  Corpenny  from  among  those  which  have  discussed 

ff  Sedalia,  57  Mo.  88  (a  motion  in  arrest  the  subject  in  the  most  general  manner, 

of  judgment  not  proper  when  a  cause  of  In  Prindle  v.  Caruthers,  15  N.  Y.  425,  the 

action    is   stated    however    defectively)  ;  complaint   set  out   a  copy  of  a   written 

Pomeroy   v.  Benton,   57    Mo.    531,    550;  contract  made  by  defendant,  and  reciting 

Hale  V.  Omaha  Nat.  Bank,  49  N.  Y.  626,  that,  "  for  value  received,"  he  "  promised 

630 ;    Barthol  v.  Blakin,  34  Iowa,  452 ;  to  pay  H.  C.  or  E.   C,"  &c. ;  but  it  did 


692 


CIVIL    REMEDIES. 


clear  that  the  courts  have,  with  a  considerable  degree  of  unanim- 
ity, agreed  upon  this  rule,  and  have  in  most  instances  applied  it 


not,  in  any  other  manner,  allege  a  con- 
sideration. It  also  stated  tliat  "  tlie  con- 
tract is,  and  was  prior  to,  &c  ,  the  property 
of  the  plaintifT  by  purchase,"  hut  did  not 
disclose  from  whom  the  transfer  was 
made,  nor  the  consideration.  Tlie  de- 
fendant demurring-  for  want  of  sufficient 
facts,  tlie  court  held  that  the  copy  of  the 
contract  as  set  forth  contained  a  sufficient 
allegation  of  a  consideration,  and  added  : 
"  Tlie  remedy  for  all  defects  of  this  nat- 
ure is  by  motion  to  make  the  faulty 
pleading  more  definite  and  certain  ;  that 
proceeding  has  taken  the  place  of  demur- 
rers for  want  of  form."  Robson  v.  Com- 
Btock,  8  Wise.  372,  was  an  action  for 
malicious  prosecution.  The  complaint 
merely  alleged  that  the  defendant,  mali- 
ciously and  without  probable  cause,  pro- 
cured tlie  plaintiff  to  be  arrested  and  to  be 
imprisoned,  to  his  damage,  &c.,  but  did 
not  state  the  nature  of  the  indictment, 
nor  in  what  the  charge  consisted,  nor 
even  that  it  was  false,  nor  that  there  had 
been  a  trial,  nor  tliat  the  plaintiff  had 
been  discliarged  or  acquitted.  Tlie  de- 
fendant answered  by  a  general  denial ; 
and,  at  the  trial,  tlie  plaintiff  had  a  ver- 
dict. On  appeal  from  the  judgment,  the 
court,  by  Cole  J.,  held  (pp.  374,  375)  that 
the  complaint  was  exceedingly  defective 
and  informal  in  its  manner  of  setting  out 
the  cause  of  action ;  but  it  was  cured  by 
the  verdict.  The  plaintiff  must  have 
proved  a  discharge  or  acquittal,  or  else 
he  could  not  have  obtained  a  verdict. 
The  code  requires  a  liberal  construction  ; 
and  the  defendant  should  have  moved 
that  the  pleading  be  made  definite  and 
certain  by  supplying  the  omitted  aver- 
ments. In  Morse  v.  Oilman,  16  Wise. 
604,  the  complaint  alleged  that  defend- 
ant entered  into  a  written  contract  with 
one  Merrick  for  grading  at  a  specified 
price  per  cubic  yard ;  that  the  work 
liad  been  completed  by  M.  according  to 
the  agreement ;  that  there  was  due  there- 
on a  certain  named  sum  ;  and  that  the 
demand  had  been  assigned  by  M.  to  the 
plaintiff;  but  it  did  not  to  any  further 
extent  state  the  provisions  of  the  contract. 
At  the  trial,  all  evidence  on  the  part  of 


the  plaintiff  was  excluded,  and  the  com- 
plaint was  dismissed.  In  reversing  this 
ruling,  the  court,  by  Dixon  C.  J.,  said 
(p.  507)  :  "  That  the  contract  between 
M.  and  the  defendant  is  not  set  out,  as  it 
undoubtedly  should  have  lieen,  is  not  an 
objection  which  can  be  taken  in  this  way. 
The  remedy  of  the  defendant  for  this  de- 
fect is  by  motion  to  require  the  complaint 
to  be  made  more  definite  and  certain  by 
amendment.  A  complaint  to  be  over- 
thrown by  demurrer,  or  by  objection  to 
evidence,  must  be  wholly  insufficient.  If 
any  portion  of  it,  or  to  any  extent  it  pre- 
sents facts  sufficient  to  constitute  a  cause 
of  action,  or  if  a  good  cause  of  action  can 
be  gathered  from  it,  it  will  stand,  how- 
ever inartificially  these  facts  may  be  pre- 
sented, or  however  defective,  uncertain, 
or  redundant  may  be  the  mode  of  their 
treatment.  Contrary  to  the  common-law 
rule,  every  reasonable  intendment  and 
presumption  is  to  be  made  in  favor  of  the 
pleading ;  and  it  will  not  be  set  aside  on 
demurrer  unless  it  be  so  fatally  defective, 
that,  taking  all  the  facts  to  be  admitted, 
the  court  can  say  they  furnish  no  cause 
of  action  whatever;  "  citing  and  approving 
Cudlipp  V.  Whipple,  4  Duer,  610;  Gra- 
ham I'.  Camman,  5  Duer,  697  ;  Broderick 
V.  Poillon,  2  E.  D.  Smith,  554.  In  Sauls- 
bury  V.  Alexander,  50  Mo.  "142,  the  peti- 
tion was,  "  Plaintiff  states  that  defendant 
owes  him,  &c.,  for  work  done  and  cash 
lent,  the  particulars  of  which  appear  from 
the  following  account,"  &c.,  and  conclud- 
ing With  a  statement  of  the  balance  due, 
and  a  prayer  for  judgment.  The  defend- 
ant, making  no  objection  to  this  pleading, 
answered,  setting  up  only  that  tlie  work 
had  been  negligently  done,  and  that  he 
had  already  paid  more  than  its  value. 
The  plaintiff  recovering  at  the  trial,  the 
defendant  moved  in  arrest  of  judgment, 
on  the  ground  that  no  cause  of  action  was 
averred.  This  motion  having  been  grant- 
ed by  the  court  below,  the  plaintiff  ap- 
pealed. The  opinion  of  the  Appellate 
Court,  by  Bliss  J.,  proceeds  as  follows  : 
"The  petition  is  informal  and  defective, 
and  there  are  some  cases  which  seem  to 
warriint  the  vievv  taken  by  the   court; 


IMPERFECT   OR   INFORMAL    ALLEGATIONS. 


593 


to  defects  and  mistakes  having  the  same  general  features,  and 
have  sometimes  severely  strained  the  doctrine  of  liberal  construc- 
tion in  order  to  enforce  it.  Thus,  if  instead  of  alleging  the 
issuable  facts  the  pleader  should  state  the  evidence  of  such  facts, 
or  even  a  portion  only  thereof,  unless  the  omission  was  so  exten- 


but  the  tendency  of  our  more  recent  de- 
cisions is  to  require  all  objections  of  form 
to  be  taken  before  tlie  parties  proceed  to 
trial."  After  admitting  that  the  cause  of 
action  was  imperfectly  stated,  but  that 
the  main  fact  of  the  plaintiff's  work,  &c., 
for  the  defendant  was  admitted  by  the 
answer,  which  took  issue  merely  upon 
the  character  of  the  labor,  the  opinion 
goes  on :  "  Now,  it  is  altogether  uncon- 
scionable to  permit  him  to  arrest  the 
judgment,  because  the  charge  which  he 
admitted  in  full  is  defectively  laid.  When 
we  say  that  a  judgment  should  be  arrested 
if  the  petition  fails  to  sliow  a  cause  of  ac- 
tion, we  speak  of  substantial,  and  not  of 
formal,  omissions.  The  latter  are  sup- 
plied by  intendment,  and  will  be  pre- 
sumed, after  verdict,  to  have  been 
proved.  But  when  the  petition  shows 
that  the  plaintiff  has  no  cause  of  action, 
then  the  verdict  should  be  treated  as  a 
nullity.  But  if  the  defects  are  merely  of 
omission,  and  if,  when  supplied,  a  com- 
plete case  would  be  made,  the  omission 
being  of  facts  which  the  jury  must  have 
found,  then  the  judgment  is  a  legitimate 
sentence  of  the  law."  In  the  recent  case 
of  Pomeroy  v.  Benton,  57  Mo.  531,  550, 
Sherwood  J.  declares  the  rule  to  be,  that 
if  the  petition,  liowever  inartificially 
drawn,  do  but  state  a  cause  of  action, 
and  no  objections  are  taken  to  its  formal 
character,  by  demurrer  or  answer,  or  by 
motion  to  correct,  then  all  objections  are 
■waived ;  and  he  very  pertinently  adds 
that  "  it  seems  often  to  be  forgotten  that 
we  have  a  code  in  Missouri."  The  same 
doctrine  was  announced  in  Elfrank  v. 
Seller,  54  Mo.  134 ;  Russell  v.  State  Ins. 
Co.,  55  Mo.  585  ;  and  Biddle  v.  Ramsey, 
52  Mo.  153.  The  position  taken  by  tiie 
court  in  these  cases,  and  in  Saulsbury  v. 
Alexander,  supi-a,  is  a  wide  departure 
from  that  maintained  bj-  some  of  the 
earlier  decisions  of  the  same  court,  which 
arrested  judgments  for  tiie  most  trivial 
defects  of  the  petition,  equalling,  if  not. 


indeed,  surpassing,  the  devotion  to  techni- 
cality shown  by  the  English  common- 
law  tribunals.  Blasdel  v.  Williams,  9  Nev. 
161,  was  an  action  to  quiet  title  under 
express  provisions  of  the  statute  (code, 
§  256).  The  complaint  alleged  that  the 
plaintiffs  have  the  legal  title,  and  are  in 
possession  ;  that  the  defendant  claims  an 
estate  or  interest  in  said  land  adverse 
to  the  plaintiffs'  right ;  that  defendant 
has  no  lawful  interest  or  estate  therein, 
or  in  any  portion  thereof,  or  valid  claim 
or  title  thereto ;  with  a  prayer  that  de- 
fendant's claim  might  be  adjudged  void, 
and  the  plaintiffs'  title  quieted.  The  an- 
swer was  a  denial,  no  demurrer  being  in- 
terposed or  motion  made.  This  complaint 
being  objected  to,  on  appeal,  tlie  court  held 
that  the  plaintiffs  should  have  stated  more 
than  the  mere  general  averments  in  re- 
spect to  the  defendant's  adverse  claim 
above  quoted.  They  should  disclose  its 
nature,  the  estate  which  he  asserts  in  the 
land,  so  as  to  show  how  it  is  prejudicial 
to  the  plaintiffs'  interest,  and  must  then 
negative  these  allegations.  Nevertheless, 
the  pleading  as  it  stood  was  sufficient  in 
the  absence  of  a  demurrer.  The  court 
said :  "  It  is  an  attempt  to  state  a  cause 
of  action,  and  is  simply  a  defective  state- 
ment of  such  cause,  rather  than  an  abso- 
lute lack  thereof."  This  case  is  a  very 
excellent  illustration  of  the  rule,  and 
would  have  been  perfect  if  the  court  had 
said  that  the  pleading  must  stand  in  the 
absence  of  a  motion  to  correct  it,  instead 
of  "  in  the  absence  of  a  demurrer  ;  "  for 
the  defect  was  exactly  of  the  kind  not 
reached  by  a  demurrer.  The  court,  in 
Mills  V.  Rice,  3  Neb.  76,  86,  87,  said  that 
when  a  petition  is  uncertain  or  indefinite 
in  its  allegations,  when  it  attempts  to  set 
up  a  good  cause  of  action,  but  the  defect 
does  not  go  to  the  length  of  omitting  to 
state  any  cause  of  action,  the  defendant 
must  move  to  correct ;  he  cannot  take 
advantage  of  it  by  demurrer. 


88 


594  CIVIL   REMEDIES. 

sive  that  no  cause  of  action  at  all  was  indicated,  or  if  he  should 
aver  conclusions  of  law,  in  place  of  fact,  the  resulting  insuffi- 
ciency and  imperfection  would  pertain  to  the  form  rather  than  to 
the  substance,  and  the  mode  of  correction  would  be  by  ia  motion, 
and  not  by  a  demurrer.  It  is  virtually  impossible,  houever,  to 
lay  down  a  dividing-line,  so  that  on  the  one  side  shall  fall  all  the 
errors  which  are  venial,  and  on  the  other  all  those  which  are 
fatal.  While  in  most  instances  the  courts  have  held  that  a 
motion  is  the  only  means  of  removing  the  defect,  and  therefore 
that  a  neglect  to  make  a  motion  waives  all  objection  without  any 
reference  to  the  stage  of  the  cause,  yet  in  some  cases  a  consid- 
erable stress  has  been  laid  upon  the  effect  of  a  verdict  in  curing 
the  error.^  And  in  certain  decisions  the  language  of  the  judges 
tends  to  create  an  unnecessary  confusion,  and  to  incorporate  an 
additional  element  of  doubt  into  the  rule,  which  is  not  at  best, 
from  its  very  nature,  capable  of  absolute  certainty.  In  the 
cases  referred  to  the  courts  have  declared  that  if  the  defendant 
omits  to  move,  to  make  the  pleading  more  definite  and  certain, 
or  to  demur,  but  answers  "and  goes  to  trial,  the  objection  is 
waived.^  This  form  of  expression  is  a  plain  departure  from  the 
rule  as  given  above,  and  is  self-contradictory.  The  very  distinc- 
tive feature  of  the  class  of  defects  under  consideration  is,  that 
they  do  not  render  a  pleading  demurrable,  but  only  expose  it  to 
amendment  by  motion.  A  failure  to  demur  is  therefore  entirely 
immaterial ;  it  does  not  waive  any  thing,  because  the  demurrer  if 
resorted  to  Avould  have  accomplished  nothing.  Doubt  and  ob- 
scurity alone  as  to  the  true  meaning  and  the  exact  force  of  the 
rule  can  arise  from  this  careless  use  of  language. 

§  550.  It  has  even  been  held,  that  where  a  cause  of  action  is  so 
defectively  set  out  that  a  demurrer  for  want  of  sufficient  facts 
would   have    been    sustained,    but   the    adverse    party   answers 

1  See  Robson    v.   Comstock,  8  Wise,  liolcl   that  such  a  motion  is   not  proper 

372,  374,  375  ;  Hazieton  v.  Union  Bank,  wlien  tlie  petition  is  simply  detective  and 

32  Wise.  34,  42,  43  ;  Clay  v.  Edgerton,  19  imperfect  in  its  statement  of  tlie  cause  of 

Ohio  St.   54y ;  Saulsbury  v.  Alexander,  action,  and  sliould  only  be  made  when  it 

50  Mo.  142,  144;  Corpenny  v.  Sedalia,  57  wholly  fails  to  set  forth  any  cause  of  ac- 

Mo.  88;  Pomeroy  V.  Benton,  57  Mo.  531,  tion ;  the  mere  imperfection  is  cured  by 

550 ;    Blasdel  v.    Williams,  9  Nev.  161 ;  the  verdict. 

Smith    V.   Dennett,    15    Minn.    81.       In  -  Pomeroy  y.  Benton,  57  Mo.  531,  550; 
Missouri,  and   in   a  few  other  States,  a  Blasdel   v.  Williams,  9  Nev.  161;  Smith 
motion  in  arrest  of  judgment  is  permitted  i-.  Dennett,  15  Miim.  81  ;  Johnson  v.  Rob- 
by  the  practice  under  some  circuni.stanccs,  inson,  20  Minn.  189,  192. 
and  the  above  cases,  cited  from  that  State, 


IMPERFECT   OR   INFORMAL   ALLEGATIONS.  595 

instead,  and  goes  to  trial,  the  objection  to  the  pleading  is  thereby- 
waived,  and  evidence  in  its  support  must  be  admitted.^  Other 
cases  are  directly  opposed  to  this  position,  and  expressly  declare 
that  if  the  complaint  or  petition  fails  to  state  any  cause  of  action 
the  objection  is  not  waived,  and  all  evidence  should  be  excluded 
at  the  trial,  even  though  the  defendant  has  answered ;  and  this 
ruling  is  in  exact  conformity  with  the  provisions  of  all  the  codes 
regulating  the  use  of  demurrers.^  The  doctrine  first  stated  is 
clearly  erroneous,  and  the  dicta  or  decisions  which  sustain  it 
ought  to  be  wholly  disregarded ;  it  violates  the  section  of  the 
codes  which  enacts  that  the  absence  of  sufficient  facts  as  a  ground 
of  demurrer  is  not  abandoned  by  an  omission  to  demur  ;  and  it 
utterly  ignores  the  established  distinction  between  a  failure  to 
state  any  cause  of  action  and  the  statement  of  a  cause  of  action 
in  an  imperfect  and  defective  manner.  It  is  only  when  the 
answer  itself  by  some  of  its  averments  supplies  the  omission  in  a 
complaint  or  petition  otherwise  demurrable  that  the  fault  is 
cured  and  the  objection  waived  by  answering  ;  mere  answering 
instead  of  demurring  cannot  produce  that  effect.^  If  the  aver- 
ments are  so  defective,  if  the  omission  of  material  facts  is  so 
great,  that,  even  under  the  rule  of  a  liberal  construction,  no 
cause  of  action  is  stated,  it  is  not  a  mere  case  of  insufficiency,  but 
one  of  complete  failure  ;  and  the  complaint  or  petition  should  be 
dismissed  at  the  trial,  or  a  judgment  rendered  upon  it  should  be 
reversed.  A  few  examples  are  placed  in  the  foot-note.^  While 
the  general  doctrine  before  stated,  as  to  the  nature  of  insufficient 
and  defective  averments,  has  been  universally  approved  in  the 
abstract,   it  has  sometimes  been  departed  from,  and  pleadings 

1  Treadway  v.  Wilder,  8  Nev.  91.  intended  and  attempted  to   set  out,  but 

2  Garner  v.  McCullougli,  48  Mo.  318  ;  which  he  failed  to  set  out  by  reason  of 
Rcotield  v.  Whiteiegge,  49  N.  Y.  259,  261,  omissions  and  defects  in  the  material  alle- 
262;  Saulsburyf.  Alexander,  50  Mo.  142,  gations ;  and  it  is  to  be  distinguislied 
144.  from  a  cause  of  action   entirely  bad  in 

3  Scofield  I'.  Whiteiegge,  49  N.  Y.  law,  no  matter  how  complete  and  perfect 
259,  261,  262  ;  Bate  v.  Graham,  11  N.  Y.  may  be  the  averments  by  which  it  is 
237;  Louisville  Canal  Co.  v.  Murphy,  9  stated.  In  the  first  case  a  pure  question  of 
Bush,  522,  529.  pleading  is  involved,  and  the  complaint 

4  Antisdel  v.  Chicago  and  N.  W.  R.  R.,  or  petition  is  demurrable  because  the 
26  Wise.  145,  147;  Tomlinson  i;.  Monroe,  rules  of  pleading  have  been  essentially  vio- 
41  Cal.  94  (an  ambiguous  and  unintelli-  lated ;  in  the  second  case  a  pure  question 
gibLe  complaint)  ;  Holmes  v.  Williams,  16  of  law  is  involved,  and  the  complaint  or 
Minn.  164,  168.  The  case  described  in  petition  is  demurrable,  although  the  rules 
the  text  is  that  of  a  cause  of  action,  good  of  pleading  have  been  in  every  respect 
if  properly  pleaded,  which   the  plaintiff  complied  with. 


596 


CIVIL   REMEDIES. 


have  been  wholly  condemned,  which,  according  to  the  criterion 
established  by  numerous  cases,  set  forth  a  cause  of  action,  al- 
though in  an  incomplete  and  imperfect  manner.  Some  illustra- 
tions of  this  strict  method  of  decision  are  given  in  the  note.^ 

§551.  II.  Redundant,  immaterial,  and  irrelevaiit  allegations; 
the  mode  of  objecting  to  and  correcting  them.  In  a  legal  action  all 
matter  stated  in  addition  to  the  allegations  of  issuable  facts,  and 
in  an  equitable  action  all  such  matter  in  addition  to  the  aver- 
ments of  material  facts  affecting  the  remedy,  is  unnecessary,  and 
therefore  immaterial  and  redundant.     Whenever,  therefore,  the 


1  Scofield  V.  Wliitelegge,  49  N.  Y.  259, 
261 ;  Hathaway  v.  Quinby,  1  N.  Y.  S.  C. 
386 ;  Doyle  v.  Phoenix  Ins.  Co.,  44  Cal. 
264,  268 ;  Holmes  v.  Williams,  16  Minn. 
1G4,  168.  Scofield  v.  Wliitelegge  was  an 
action  to  recover  possession  of  a  chattel. 
The  complaint  alleged  that  the  defendant 
had  become  possessed  of  and  wrongfully 
detained  from  the  plaintiff  a  piano  of  the 
value  of,  &c.,  and  demanded  the  usual 
judgment.  The  answer  denied  the  pos- 
session of  any  property  belonging  to  the 
plaintiff,  denied  the  wrongful  taking,  and 
denied  the  plaintiff's  ownership.  The 
complaint  was  dismissed  at  the  trial,  on 
the  ground  that  it  stated  no  cause  of  ac- 
tion. The  opinion  of  the  New  York 
Court  of  Appeals,  by  Folger  J.,  after  re- 
citing the  common-law  rule  in  replevin, 
that  the  action  could  only  be  maintained 
by  one  who  had  the  general  or  a  special 
property  in  the  chattel,  that  this  property 
must  have  been  averred  in  the  declara- 
tion, that  tlie  action  under  the  code  takes 
exactly  the  place  of  the  old  replevin,  and 
that  the  plaintiff  in  it  must  have  a  prop- 
erty in  the  chattel,  proceeds  as  follows 
(p.  261)  :  "  Nor  is  it  less  necessary  now 
than  then  for  the  plaintiff  to  aver  the  facts 
which  constitute  his  cause  of  action.  He 
must  allege  the  facts,  and  not  the  evi- 
dence ;  he  must  allege  facts,  and  not  con- 
clusions of  law.  The  i)laintiffhere  alleges 
that  the  defendant  icro>nifi(llij  detains  from 
him  the  cliattel.  If,  indeed,  this  be  true, 
then  it  must  be  that  the  plaintiff  has  a 
general  or  special  property  in  the  chattel, 
and  the  riglit  of  immediate  possession. 
But  unless  he  has  that  general  or  special 
property  and  right  of  immediate  posses- 
sion, it  cannot  be  true  that  it  is  wrongfully 


detained  from  him.  The  last  —  the  wrong- 
ful detention  —  grows  from  the  first,  — 
the  property  and  right  of  possession.  The 
last  is  the  conclusion.  The  first  is  the 
fact  upon  which  that  conclusion  is  based  ; 
it  is  the  fact  which,  in  a  pleading,  must 
be  alleged.  Is  not  the  statement  of  a 
conclusion  of  law,  without  a  fact  averred 
to  support  it,  an  immaterial  statement  ?  " 
This  decision  is  certainly  technical  to  the 
last  degree  when  tested  by  the  standard 
established  in  the  codes  and  in  other 
cases.  The  complaint  was  undoubtedly 
imperfect;  but  it  set  forth  a  cause  of  ac- 
tion, although  in  an  incomplete  manner. 
The  learned  judge  concedes  that  the  aver- 
ment "the  defendant  wroiu/fulli/  detains 
from  the  plaintiff"  necessarily  presupposes 
and  implies  a  property  and  right  of  pos- 
session in  the  plaintiff.  The  only  defect, 
therefore,  consisted  in  an  allegation  of 
the  evidence,  or  perhaps  of  the  legal  con- 
clusion, instead  of  the  issuable  fact.  The 
defendant  was  not  misled  ;  his  answer 
shows  that  he  imderstood  the  claim,  and 
it  raised  all  the  issues  upon  which  he  re- 
lied. Tlie  complaint  is,  indeed,  a  striking 
illustration  of  a  defective  pleading,  which 
should  be  corrected  by  motion,  and  not 
attacked  by  demurrer;  and  the  opin- 
ion is  a  clear  and  convincing  argument 
showing  why  such  a  motion  ought  to  be 
granted  ;  but  it  violates  the  liberal  prin- 
ciple of  construction,  and  returns  to  the 
common-law  rule  requiring  a  strict  inter- 
pretation against  the  pleader.  The  facts 
and  opinion  in  Hathaway  v.  Quinby, 
which  is  quite  similar  in  its  general 
character,  and  in  Doyle  v.  Plicenix  Ins. 
Co.,  may  be  found,  sujjrn,  §§  531,  535. 


REDUNDANT    OR    IRRELEVANT    ALLEGATIONS.  597 

issuable-facts  constituting  a  legal  cause  of  action,  or  the  material 
facts  upon  which  the  right  to  equitable  relief  is  wholly  or  par- 
tially based,  are  pleaded,  all  the  details  of  probative  matter  by 
which  these  facts  are  to  be  established,  and  all  the  conclusions  of 
law  inferred  therefrom,  are  plainly  embraced  within  this  descrip- 
tion. It  would  not  be  strictly  correct  to  say  that  statements  of 
evidence  or  of  legal  conclusions  are,  under  all  circumstances, 
redundant.  If  a  complaint  or  petition  should,  in  violation  of  the 
principles  established  by  the  reformed  procedure,  allege  the  evi- 
dence of  some  issuable  or  material  fact  instead  -of  the  fact  itself, 
or  should  state  a  conclusion  of  law  in  place  of  the  proper  fact  or 
facts  which  support  it,  these  averments  would  be  irregular,  im- 
perfect, insufficient,  and  liable  to  correction  by  a  motion ;  but 
they  might  not  be  necessarily  redundant.  If  the  pleading  was 
not  reformed,  and  if  the  defect  was  not  so  serious  as  to  render  it 
demurrable,  it  would  be  treated  on  the  trial  as  sufficient ;  and  the 
statement  of  probative  matter  or  of  legal  conclusions  would  take 
the  place  of  the  issuable  or  material  facts  which  ought  to  have 
been  averred,  and  would  thus  become  material.  It  is  self-evident, 
however,  that  if  the  essential  doctrines  of  pleading  are  complied 
with,  and  the  proper  facts  constituting  the  cause  of  action,  or 
affecting  the  equitable  relief,  are  all  set  forth,  then  any  detail  of 
evidence  or  any  conclusion  of  law  is  necessarily  surplusage, 
and  redundant.  A'h  allegation  is  irrelevant  when  the  issue 
formed  by  its  denial  can  have  no  connection  with  nor  effect  upon 
the  cause  of  action.  Every  irrelevant  allegation  is  immaterial 
and  redundant :  but  the  converse  of  this  proposition  is  not  true  ; 
every  immaterial  or  redundant  allegation  is  not  irrelevant.  This 
general  description  can  only  be  explained  and  illustrated  by  an 
examination  of  individual  cases,  of  which  a  few  have  been  col- 
lected in  the  note  as  examples.^ 

§  552.  The  rule  is  established  by  the  unanimous  decisions  of 

1  Bowman  v.  Sheldon,  5  Sandf.  057,  16  Minn.   329,  384,  335 ;  King  v.  Enter- 

660;    Fasnacht  v.  Stehn,  53  Barb.   650;  prise  Ins.  Co.,  45  Ind.  43,55;  Hynds  v. 

Hunter  v.  Powell,  15  How.  Pr.  221 ;  Fab-  Hays,  25  Ind.  31 ;  Boolier  v.  Goldsborough, 

ricotti   V.   Launitz,    3    Sandf.    743.      See  44  Ind.  490,  498,  499  (duplicity)  ;  Loomis 

Bank  v.  Kitching,  7  Bosw.  664;   11  Abb.  v.  Youle,  1  Minn.  175  ;  Clark  v.  Harwood, 

Pr.  435;  Cahill  v.  Palmer,   17   Abb.  Pr.  8  How.  Pr.  470;  Edgerton  v.    Smith,  3 

196  ;  Decker  v.  Mathews,  12  N.  Y.  313;  Duer,  614;    Sellar  v.  Sage,  12   How.  Pr. 

Gould  V.  Williams,   9  How.  Pr.   51;  St.  531;  13  How.  Pr.  230;    Lee  v.  Elias,  3 

John  V.  Griffith,  1  Abb.  Pr.  39  ;  O'Connor  Sandf.   736  ;    Lamoreux   v.  Atlant.  Mut. 

V.  Koch,  56  Mo.  253 ;  Clague  v.  Hodgson,  Ins.  Co.,  3  Duer,  680. 


698  CIVIL   REMEDIES. 

the  courts,  as  well  as  by  the  provision  found  in  the  codes,  that 
the  proper  and  only  method  of  oV)iecting  to  and  correcting 
redundant,  immaterial,  or  irrelevant  allegations  in  a  pleading,  is  a 
motion  to  strike  out  the  unnecessary  matter,  and  not  a  demurrer, 
nor  an  exclusion  of  evidence  at  the  trial. ^  The  new  procedure 
thus  furnishes,  by  means  of  these  motions  in  cases  of  insuffi- 
ciency, redundancy,  or  irrelevancy,  a  speedy  and  certain  mode  of 
enforcing  the  fundamental  doctrines  of  pleading  what  it  has. 
established,  and  of  causing  the  complaints  or  petitions  and 
answers  to  present  single,  clear,  and  well-defined  issues.  At  the 
same  time  it  prevents  a  sacrifice  of  substance  to  form,  and  a 
decision  of  controversies  upon  technical  points  not  involving  the 
merits,  by  requiring  these  objections  to  be  taken  before  the  trial, 
and  by  regarding  them  as  waived  if  the  prescribed  mode  of  rem- 
edy is  not  resorted  to.  The  courts  have  it  in  their  power,  by 
encouraging  these  classes  of  motions,  and  by  treating  them  as 
highly  remedial  and  important,  to  shape  the  pleading  into  an  har- 
monious and  consistent  system,  constructed  upon  the  few  natural 
and  philosophical  principles  which  were  adopted  as  its  founda- 
tion ;  or  they  may,  on  the  other  hand,  by  discouraging  a  resort  to 
these  corrective  measures,  and  by  treating  them  as  idle,  unneces- 
sary, or  vexatious,  suffer  those  principles  to  become  forgotten,  and 
to  be  finally  abandoned,  and  may,  thereby,  lose  all  the  benefits 
which  were  designed,  and  which  could  have  been  obtained  from 
the  reform. 

§  553.  III.  The  doctrine  that  the  cause  of  action  or  defence 
proved  must  correspond  with  the  one  alleged.  The  codes  describe 
three  grades  of  disagreement  between  the  proofs  at  the  trial  and 
the  allegations  in  the  pleadings  to  which  such  proofs  are  directed  : 
namely,  (1)  An  immaterial  variance,  where  the  difference  is  so 
slight  and  unimportant  that  the  adverse  party  is  not  misled 
thereby,  and  in  which  case  the  court  will  order  an  immediate 
amendment  without  costs,  or  will  treat  the  pleading  as  though 
amended,  permitting  the  evidence  to  be  received  and  considered  ; 
(2)  A  material  variance,  where  although  the  proof  has  some 
relation  to  and  connection  with  the  allegation,  yet  the  difference 
is  so  substantial  that  the  adverse  party  is  misled  by  the  averment, 

1  Loomis    V.    Youle,    1     Minn.    175;  30  N.  Y.  655;   Simmons  v.   Eldridge,  29 

O'Connor  i;.  Koch,  56  Mo.  253 ;  King  v.  How.  Pr.  309  ;  19  Abb.  Pr.  296  ;  Cahill 

Enterprise  Ins.  Co.,  45  Ind.  43,  55  ;  Hynds  v.  Palmer,  17  Abb.  Pr.  196. 
V.  Hays,  25  Ind.  31 ;  Smith  v.  Countryman, 


ALLEGATIONS    AND   PROOFS    MUST   CORRESPOND.  599 

and  would  be  prejudiced  on  the  merits,  in  which  case  the  court 
may  permit  the  pleading  to  be  amended  upon  terms  ;  (3)  A  com- 
plete failure  of  proof,  where  the  proofs  do  not  simply  fail  to 
conform  with  the  allegation  in  some  particular  or  particulars,  but 
in  its  entire  scope  and  meaning,  or,  in  other  words,  the  proof 
establishes  something  wholly  different  from  the  allegations.  In 
this  case  no  amendment  is  permitted,  but  the  cause  of  action  or 
defence  is  dismissed  or  overruled.^  In  these  statutory  provisions 
the  doctrine  that  the  proofs  must  correspond  with  the  allegations 
is,  in  a  somewhat  modified  form,  united  with  the  subject  of 
amendment,  by  which  the  minor  grades  of  the  variance  may  be 
obviated.  In  the  present  subdivision  I  shall  consider  only  the 
former  of  these  two  toj)ics,  and  shall  discuss  the  scope  and  effect 
of  the  general  rule,  that  the  cause  of  action,  or  the  defence  as 
proved,  must  correspond  with  that  averred  in  the  pleading. 

§  554.  The  very  object  and  design  of  all  pleading  by  the  plain- 
tiff, and  of  all  pleading  of  new  matter  by  the  defendant,  is  that 
the  adverse  party  may  be  informed  of  the  real  cause  of  action  or 
defence  relied  upon  by  the  pleader,  and  may  thus  have  an  oppor- 
/tunity  of  meeting  and  defeating  it  if  possible  at  the  trial.  Unless 
the  petition  or  complaint  on  the  one  hand,  and  the  answer  on  the 
other,  fully  and  fairly  accomplishes  this  purpose,  the  pleading 
would  be  a  useless  ceremony,  productive  only  of  delay,  and  the 
parties  might  better  be  permitted  to  state  their  demands  orally 
before  the  court  at  the  time  of  the  trial.  The  requirement, 
therefore,  that  the  cause  of  action  or  the  affirmative  defence 
must  be  stated  as  it  actually  is,  and  that  the  proofs  must  estab- 
lish it  as  stated,  is  involved  in  the  very  theory  of  pleading.  It 
frequently  happens,  however,  and  from  the  very  nature  of  the 
case  it  must  happen,  that  the  facts  as  proved  do  not  exactly  agree 
with  those  alleged.  To  determine  the  effect  of  such  a  disagree- 
ment we  must  recur  to  the  reason  and  object  of  the  rule,  and  they 
furnish  a  certain  and  equitable  test.  If  the  difference  is  so  slight 
that  the  adverse  party  has  not  been  misled,  but,  in  preparing  to 
meet  and  contest  the  case  as  alleged,  he  is  fully  prepared  to  meet 
and  oppose  the  one  to  be  actually  proved,  then  no  effect  what- 
ever is  produced  by  the  variance  ;  to  impose  any  loss  or  penalty 
on  the  pleader  woidd  be  arbitrary  and  technical.  In  the  second 
place,  the  difference,  while  it  does  not  extend  to  the  entire  cause 
^  See  these  provisions  quoted  supra,  §  435. 


GOO  CIVIL    REMEDIES. 

of  action  or  defence,  may  be  so  great  in  respect  to  some  of  its 
particular  material  facts  as  to  have  misled  the  adverse  party,  so 
that  his  preparation  in  connection  with  that  particular  is  •  not 
adapted  to  the  proofs  which  are  produced.  In  such  circum- 
stances an  amendment  is  proper  because  the  variance  is  partial, 
but  it  is  obviously  equitable  that  terms  should  be  imposed. 
Finally,  if  the  divergence  is  total,  that  is,  if  it  extends  to  such  an 
important  fact,  or  group  of  facts,  that  the  cause  of  action  or 
defence  as  proved  would  be  another  than  that  set  up  in  the  plead- 
ings, there  is  plainly  no  room  for  amendment,  and  a  dismissal  of 
the  complaint  or  rejection  of  the  defence  is  the  onl}^  equitable 
result.  It  should  be  noticed,  that,  in  order  to  constitute  this 
total  failure  of  proof,  it  is  not  necessary  for  the  discrepancy  to 
include  and  affect  each  one  of  the  averments.  A  cause  of  action 
as  stated  on  the  pleadings  might  consist,  say,  of  five  distinct 
issuable  or  material  facts  ;  on  the  trial  four  of  these  might  be 
proved  as  laid,  while  one  so  entirely  different  might  be  substi- 
tuted in  place  of  the  fifth  that  the  cause  of  action  would  be 
wholly  changed  in  its  essential  nature. 

§  555.  The  conclusions  reached  in  the  foregoing  analysis,  and 
the  reasons  which  support  them,  are  fully  sustained  by  the  de- 
cided cases  which  constantly  discriminate  between  the  immaterial 
variance  which  is  disregarded,  and  the  total  failure  of  proof 
Avhich  is  fatal  to  the  cause  of  action  or  defence.  It  is  of  course 
impossible  to  give  any  comprehensive  formula  which  shall  deter- 
mine these  two  conditions  ;  the  scope  and  operation  of  the  doc- 
trine can  only  be  learned  from  the  decisions  which  have  applied 
it,  of  which  a  few  are  selected  as  illustrations.  In  the  following 
instances  the  variance  was  held  to  be  immaterial :  In  an  action 
upon  a  written  contract  which  was  properly  set  out  in  the  com- 
plaint except  that  one  material  stipulation  was  omitted,  but  a 
correct  copy  of  it  h?id  been  served  upon  the  defendant's  attor- 
ney.^ In  an  action  against  a  city  for  injuries  done  to  the  plain- 
tiff's house  and  grounds  by  the  unlawful  construction  of  sewers, 
sidewalks,  &c.,  it  was  held  that,  if  the  manner  of  constructing 
the  works  was  unlawful,  the  failure  to  allege  negligence  in  the 
complaint  was  not  material,  and  might  be  either  disregarded  or 
amended  at  any  stage  of  the  proceeding ;  ^  in  an  action  upon  a 

i  Fisk  V.  Tank,  12  Wise.  276,  301.  377,  378.     "  The  alleged  variance  did  not 

^  Harper  v.  Milwaukee,  00  Wise.  365,     change  tlie  gravamen  of  the  action." 


ALLEGATIONS    AND   PROOFS   MUST    CORRESPOND.  601 

warranty  given  in  a  sale  of  horses,  where  the  complaint  stated 
in  general  terms  that  the  defendant  warranted  them  to  be  sound, 
while  the  proof  was  that  he  warranted  them  to  be  sound  as  far 
as  he  knew  ;  that  they  were  unsound,  and  that  he  knew  them  to 
be  so,  the  court  saying  that  an  amendnlent  if  necessary  should  be 
made  at  any  time  even  by  the  appellate  court ;  ^  in  an  action 
upon  a  warranty  of  qualit}^  where  the  complaint  set  forth  an 
express  warranty,  and  on  the  trial  facts  were  proved  from  which 
a  warranty  would  be  implied  ;  ^  in  an  action  against  two  de- 
fendants to  recover  damages  for  injuries  done  to  the  plaintiff's 
sheep  by  the  defendants'  dogs,  the  petition  alleging  that  "  a  cer- 
tain pack  or  lot  of  dogs  owned  by  the  defendants  worried,  &c., 
certain  sheep  of  the  plaintiff,"  while  the  proof  showed  that  one 
of  the  defendants  owned  a  portion  of  the  dogs,  and  the  other 
defendant  the  remainder,  but  there  was  no  joint  ownership  ;^  in 
an  action  by  a  husband  and  wife  against  a  husband  and  wife  for 
an  assault  and  battery  by  the  female  defendant  upon  the  female 
plaintiff,  the  petition  alleging  that  the  plaintiff  Mary  D.  is  the 
wife  of  the  plaintiff,  James  D.,  and  the  defendant,  Martha  H.,  is 
wife  of  the  defendant,  Aaron  H.,  and  proof  was  admitted  that 
the  parties  were  respectively  man  and  wife  at  the  time  of  the ' 
affray ;  *  in  an  equitable  action  brought  to  set  aside  a  conveyance 
of  land  made  to  the  defendant,  on  the  ground  of  his  alleged 
fraud,  and  the  j)laintiff  failed  to  make  out  a  case  of  fraud,  but 
did  prove  one  of  mutual  mistake  ;  ^  in  an  action  for  work  and 
labor  stated  in  the  complaint  to  have  been  done  for  an  agreed 
compensation,  bat  at  the  trial  the  plaintiff  proved  the  value  as 
upon  a  quantum  meruit.^  The  Supreme  Court  of  North  Carolina 
has  gone  so  far  as  to  hold  in  one  case  where  the  complaint  set  up 
a  cause  of  action  for  the  conversion  of  chattels,  and  the  proof  at 
the  trial  showed  only  a  liability  upon  an  implied  promise  for 
money  had  and  received,  that  the  plaintiff  could  recover,  since 
all  distinction  between  forms  of  action  had  been  abolished,  and 
amendments  were  freely  alio  wed  J     This  decision,    as   will   be 

^  Chatfield  v.  Frost,   3   N.  Y.  S.   C.  5  Montgomery  v.  Shockey,  37  Iowa, 

357.  107,  109  ;    Sweezey  v.  Collins,  86  Iowa, 

2  Giffert  v.  West,  33  Wise.  617,  621 ;  589.  592. 
Leopold  V.  Vankirk,  27  Wise.  152,  155 ;         «  Sussdorf  v.  Schmidt,  55  N.  Y.  319, 

s.  c.  29  Wise.  548,  551.     At  the  common  324. 

law,  this  was  the  only  mode  of  alleging  an  "^  Gates  v.  Kendall,  67  N.  C.  241.    But 

implied  warranty.  see  Parsley  v.  Nicholson,  65  N.  C.  207, 

!*  MeAdams  v.  Sutton,  24  Ohio  St.  333.  210,  which   maintains   the   general  doc- 

4  Dailey  v.  Houston,  58  Mo.  361,  366.  trine.  , 


602  CIVIL   REMEDIES. 

seen,  stands  opposed  to  the  wliole  current  of  authority  in  other 
States.  Tlie  objection  that  the  proof  varies  from  the  allegation 
must  be  taken  at  the  trial  ;  if  omitted,  then  it  cannot  be  after- 
wards raised  on  appeal.^  The  reason  is  obvious  ;  when  made  at 
the  trial,  there  is  an  opportunity  for  removing  it  at  once  by 
amendment. 

§  556.  The  following  are  examples  of  a  complete  failure  of 
proof.  In  all  these  cases  one  cause  of  action  was  alleged  by  the 
plaintiff,  and  another  one  was  proved  or  attempted  to  be  proved 
at  the  trial,  but  was  rejected  by  the  court.  The  New  York  Court 
of  Appeals,  while  passing  upon  the  admissibility  of  evidence 
which  made  out  a  liability  under  implied  contract,  in  order  to 
sustain  a  complaint  that  charged  a  fraudulent  transaction  and 
sought  to  recover  the  money  obtained  by  means  of  such  fraud, 
used  the  following  language  in  a  recent  case  :  "  It  is  insisted  that, 
under  the  code,  forms  of  action  are  abolished,  and  that  the  facts 
showing  the  right  of  action  need  only  be  stated.  This  is  correct, 
but  it  does  not  aid  the  plaintiff.  The  plaintiff  had  a  cause  of 
action  against  the  defendant  upon  an  account  for  moneys  ad- 
vanced for  him.  Instead  of  stating  this  cause  of  action,  the  alle- 
gation is  in  substance  that  he  paid  him  money  as  the  price  of 
stocks  fraudulently  sold  by  defendant  to  plaintiff,  which  contract 
has  been  rescinded  by  the  plaintiff,  and  a  return  of  the  money 
demanded,  which  has  been  refused  by  the  defendant.  These 
causes  of  action  differ  in  substance.  The  former  is  upon  con- 
tract, the  latter  in  tort ;  and  the  law  will  not  permit  a  recovery 
upon  the  latter  by  showing  a  right  to  recover  upon  the  former."  ^ 
It  is  the  settled  rule  under  the  codes,  contrary  to  that  prevailing 
in  the  common-law  system,  that  when  a  cause  of  action  depends 
upon  the  performance  of  some  act,  but  under  certain  circum- 
stances the  performance  may  be  excused  and  the  cause  of  action 
still  remain  in  force,  the  facts  showing  the  excuse  must  be  al- 
leged if  the  plaintiff  intends  to  rely  upon  it,  and  not  upon  the 
performance.  The  plaintiff  is  no  longer  permitted  to  aver  the 
performance  of  the  required  act,  and  on  the  trial  prove  the  cir- 
cumstances which  excuse  such  performance,  or  prove  any  other 
alternative  than  the  one  specially  alleged.  Thus  where,  in  an 
action  against  indorsers,  the  complaint  stated  a  demand  at  matu- 
rity, and  notice  thereof  to  the  defendants,  and  on  the  trial  the 

i  Speer  v.  Bishop,  24  Ohio  St.  598.  ^  De  Graw  v.  Elmore,  50  N.  Y.  1. 


ALLEGATIONS   AND   PROOFS   MUST    CORRESPOND.  603 

plaintiff  offered  to  prove  facts  which  would  excuse  any  demand, 
the  evidence  was  held  inadmissible,  and  the  action  was  dis- 
missed ;  ^  and  in  a  similar  case  under  a  statute  which  required 
that  in  order  to  make  an  indorser  liable  due  diligence  must  be 
used  by  the  institution  of  a  suit  against  the  maker,  or  else  that 
such  a  suit  would  be  unavailing,  the  petition  alleged  that  due 
diligence  had  been  used  by  commencing  a  suit  against  the  maker, 
in  which  judgment  had  been  recovered,  and  an  execution  had 
been  issued  and  returned  unsatisfied ;  and  it  was  held  that  the 
other  alternative,  the  maker's  insolvency,  and  the  consequent 
unavailing  character  of  a  suit  against  him,  could  not  be  shown  on 
the  trial ;  ^  and  in  a  similar  action  against  the  drawer  of  a  bill  or 
the  indorser  of  a  bill  or  note,  when  the  petition  avers  the  demand 
and  notice  in  order  to  charge  the  defendant,  a  waiver  of  these 
steps  cannot  be  proved, —  for  example,  a  subsequent  promise  by 
the  defendant  to  pay  the  note  when  the  steps  necessary  to  charge 
him  had  been  omitted.^ 

§  557.  The  following  are  miscellaneous  instances  of  a  fatal  dis- 
agreement between  the  cause  of  action  pleaded  and  that  proved 
on  the  trial :  In  an  action  to  recover  damages  for  trespass  to 
lands,  the  complaint  alleging  that  the  plaintiffs  were  possessed  of 
the  premises  ;  on  the  trial,  however,  it  appeared  that  they  were 
remainder-men  not  yet  entitled  to  the  possession,  while  the  de- 
fendants were  rightfully  in  possession,  but  had  committed  acts 
of  waste  for  which  they  would  be  liable  in  an  action  properly 
brought.  This  cause  of  action  being  wholly  different  from  that 
alleged,  the  complaint  was  dismissed.*  The  petition  in  an  action 
of  forcible  entrj^  and  detainer,  stating  that  the  defendant  was 
holding  over  after  the  expiration  of  his  lease,  the  plaintiff  was 
not  permitted  to  show  that  he  obtained  possession  through  fraud; 
since  this  would  be  the  averment  of  one  material  fact,  and  the 
proof  of  another.^  When  the  comr)laint  set  forth  a  contract,  and 
on  the  trial  the  plaintiff  proved  without  objection  a  materially 
different  one,  and  was  thereupon  nonsuited,  the  nonsuit  was  sus- 
tained, the  court  adding  that  the  admission  of  the  evidence 
without  objection  made  no  difference  with  the  operation  of  the 

1  Pier  V.  Heinrlehoffen,  52    Mo.  333,  108.     See  also  Hudson  v.  McCartney,  33 

335.  Wise.  331,  346,  and  cases  cited. 

^  Woolsey  v.  Williams,  34  Iowa,  413,  *  Tracy  v.  Ames,  4  Lans.  500,  506. 

415.  5  Goldsmith  v.  Boersch,  28  Iowa,  351, 

3  Lumbert  v.  Palmer,   29  Iowa,   104,  354. 


604  CIVIL   REMEDIES. 

rule.^  And  if  a»complaint  sets  forth  a  cause  of  action  for  a  nuisance 
of  a  certain  specified  kind,  an  essentially  different  one  cannot  be 
proved ;  as,  for  example,  in  an  action  by  a  lower  riparian  owner 
for  increasincf  the  flow  of  a  natural  water-course  by  draining 
other  streams  into  it,  the  plaintiff  was  not  permitted  to  prove  a 
nuisance  which  consisted  solely  in  the  fouling  of  such  water- 
course by  the  defendant.^  A  written  contract  having  been  set 
out  in  the  petition,  the  plaintiff  cannot  in  place  of  it  prove  facts 
going  to  show  that  the  defendant  is  estopped  from  denying  such 
contract.^  When  a  petition  stated  a  cause  of  action  for  work 
and  labor  done  by  the  plaintiff  for  the  defendant,  but  the  proofs 
showed  that  defendant  had  only  guaranteed  the  payment  by 
other  persons  for  services  rendered  to  them,  a  recovery  was  held 
impossible.'^  An  allegation  that  the  defendant  erected  a  fence 
across  a  highway,  and  thereby  obstructed  it,  cannot  be  sustained 
by  proof  that  the  defendant  built  a  stone  fence  fifteen  rods  from 
the  road,  and  thereby  caused  water  to  flow  upon  and  obstruct  the 
same,  for  the  causes  of  action  are  different ;  ^  and  upon  an  alle- 
gation that  the  plaintiff  did  work  and  labor  for  defendant  on  his 
milldam,  proof  that  the  services  were  performed  in  harvesting 
grain  is  a  fatal  variance.^ 

§  558.  By  far  the  most  important  distinction  directly  connected 
with  this  doctrine  is  that  which  subsists  between  causes  of  action 
ex  contractu  and  those  ex  delicto.  It  is  settled  by  an  almost  unani- 
mous series  of  decisions  in  various  States,  that  if  a  complaint  or 
petition  in  terms  alleges  a  cause  of  action  ex  delicto,  for  fraud, 
conversion,  or  any  other  kind  of  tort,  and  the  proof  establishes  a 
breach  of  contract  express  or  implied,  no  recovery  can  be  had, 
and  the  action  must  be  dismissed,  even  though  by  disregarding 
the  averments  of  tort,  and  treating  them  as  surplusage,  there 
might  be  left  remaining  the  necessary  and  sufficient  allegations, 
if  they   stood   alone,  to   show   a   liability   upon    the    contract." 

1  Johnson  v.  Moss,  45  Cal.  515.  6  Thatcher    v.   Heisey,   21    Olilo    St. 

2  O'Brien  v.  St.  Paul,  18  Mhin.  176,     668. 

181.  "  From    the    great   number   of   cases 

8  Phillips  V.   Van  Scliaick,  37   Iowa,  which    maintain    this    doctrine    I    have 

229,  237.     It  was  addeil  tliat  if  the  plain-  selected  those  which  are  the  most  recesit 

tiff  wishes  to  avail  himself  of  an  estoppel  and  important,  and  which  discuss  it  with 

it  must  be  specially  pleaded,  citing  Ran-  the  greatest  fulness.     Walter  v.  Bennett, 

Bom  V.  Stanberry,  22  Iowa,  3.34.  16  N.  Y.  250 ;  Ross  v.  Mather,  51  N.  Y. 

*  Packard  v.  Snell,  35  Iowa,  80,  82.  108;  De  Graw  v.  Elmore,  50  N.  Y.   1  ; 

5  Hill  V.  Supervisor,  10  Ohio  St.  621.  Sager  v.  Blain,  44  N.  Y.  445,  448;  Moore 


ALLEGATIONS    AND   PROOFS    MUST   CORRESPOND.  605 

While  this  doctrine  is  firmly  established,  and  while  there  is  no 
difficult}^  in  its  application,  when  it  is  once  ascertained  that  the 
cause  of  action  is  for  a  tort,  it  is  not  so  easy,  in  the  absence  of 
any  specific  tests,  and  in  the  careless  mode  of  pleading  which  is 
too  prevalent,  to  determine  whether  the  cause  of  action  stated  by 
the  plaintiff  is  ex  delicto  or  ex  contractu.  Under  the  former  sys- 
tem, the  presence  or  absence  of  certain  technical  formulas  removed 
all  doubt  ;  but  as  these  arbitrary  means  of  distinction  have  been 
abandoned,  and  as  pleadings  frequently,  in  violation  of  true  prin- 
ciples, combine  charges  of  fraud,  of  guilty  knowledge,  of  taking, 
carrying  away,  and  conversion,  and  the  like,  with  averments  of 
undertakings  and  promises,  and  their  breach,  it  is  sometimes  im- 
possible to  decide  which  class  of  allegations  constitute  the  gra~ 
vamen  of  the  action,  and  which  is  to  be  regarded  as  surplusage. 
The  decided  cases  will  not  give  us  much  aid,  for  pleadings  with 
substantially  the  same  averments  have  received  diametrically 
opposite  constructions.  Tliere  is  thus  a  conflict  among  the 
decisions  in  reference  to  this  subject  irreconcilable  upon  prin- 
ciple, and  only  to  be  evaded  by  pronouncing  one  set  of  them  to 
be  erroneous.  Although  it  is  simply  impossible  to  develop  any 
general  rule  of  interpretation  from  these  cases,  a  few  are  selected 
as  examples. 

§  559.  It  may  be  considered  a  settled  point  on  principle  and  on 
authority,  that  the  nature  of  the  cause  of  action  is  determined 
by  the  allegations  of  the  complaint  or  petition,^  so  that  the  in- 
quiry need  never  extend  beyond  this  first  pleading  in  the  suit.  I 
shall  first  cite  illustrations  of  causes  ex  contractu.  In  an  action  by 
a  vendee  to  recover  damages  arising  on  the  sale  of  a  horse  to  him, 
the  complaint,  after  setting  forth  the  sale,  and  that  the  horse  was 
in  fact  "  wind-broken,"  stated  that  the  defendant  knew  of  this 
defect,  and  "  fraudulently  concealed  the  same  with  intent  to 
deceive  "  the  plaintiff,  giving  the  circumstances  in  unnecessary 
detail ;  and  that,  "  further  to  mislead  and  deceive  the  plaintiff, 
the  defendant  falsely  represented  and  warranted  to  the  plaintiif 

V.  Noble,  53  Barb.  425  ;  Rothe  v.  Rothe,  i  Welsh   v.  Darragh,   52   N.   Y.   590. 

31  Wise.  570,  572 ;  Anderson  v.  Case,  28  Although    the   immediate   question    was 

Wise.  505,  508 ;  Supervisors  v.  Decker,  30  whether  the  cause  was  a  referable  one. 

Wise.  624  ;  Johannesson  v.  Borschenius,  jet  the  reasoning  and  conclusion  are  gen- 

35  Wise.   181,   135;   Dean  v.  Yates,  22  eral.     Some  of  the  cases  lay  some  stress 

Ohio  St.  888,397;  Watts  v.  McAllister,  upon  the  kind  of  summons  used  as  indica- 

33   Ind.  264.     See,  per  contra,   Gates   v.  live  of  the  pleader's  intention. 
Kendall,  67  N.  C.  241. 


606  CIVIL   REMEDIES. 

that  the  horse  was  sound,  &c.  ;  that  by  reason  of  the  premises 
the  plaintiff  was  deceived,  and  was  induced  to  purchase  and  pay 
for  the  horse  ;  "  concluding  with  an  allegation  of  damages  and  a 
prayer  for  judgment.  The  Superior  Court  of  New  York  City 
held  that  this  complaint  stated  a  cause  of  action  on  contract  for 
the  breach  of  a  warranty,  and  that  all  the  averments  of  fraud 
must  be  treated  as  surplusage.^  A  complaint  contained  the  fol- 
lowing averments :  that  the  defendants,  having  in  their  possession 
certain  securities,  the  property  of  the  plaintiff,  entered  into  an 
agreement  with  him,  whereby  they  promised  to  deliver  up  said 
securities  to  him  ;  that  he  had  demanded  the  same,  but  the  de- 
fendants wrongfully  refused  to  deliver  them,  and  wrongfully  dis- 
posed of  and  converted  them  to  their  own  use.  The  New  York 
Court  of  Appeals  pronounced  this  cause  of  action  to  be  on  con- 
tract, and  not  for  a  tort.^  In  another  quite  similar  case  the  com- 
plaint stated  that  the  plaintiffs,  at,  &c.,  consigned  to  the 
defendants,  who  were  commission-merchants  at,  &c.,  certain 
specified  articles,  to  be  sold  by  them,  and  the  net  proceeds 
thereof  remitted ;  that  the  defendants  received  the  goods,  and 
sold  them  for  a  sum  named  ;  and  after  deducting  all  ex- 
penses, there  was  due  to  the  plaintiffs  the  sum  of,  &c.,  which 
they  demanded  of  the  defendants,  who  omitted  and  refused  to 
pay  the  same,  and  have  converted  the  same  to  their  own  use,  to 
the  damage  of  the  plaintiffs  of,  &c.  This  cause  of  action  was 
also  held  by  the  same  court  to  be  on  contract,  and  not  for  a  tort.^ 
In  a  more  recent  action  brought  for  the  price  of  certain  bonds 
that  had  been  sold  to  the  plaintiff,  and  which  had  turned  out  to 

1  Quintard  V.  Newton,  5  Robt.  72.  The  tliis  decision.  The  central  fact  of  the 
plaintiff,  at  the  trial,  proved  the  warranty,  complaint  was  made  to  be  the  promise, 
but  gave  no  evidence  of  the  scienter,  and  and  the  breach  was  inartificially  charged, 
the  complaint  was  dismissed.  The  Gen-  ^  Conaughty  v.  Nichols,  42  N.  Y.  83. 
eral  Term  held  that  he  should  have  re-  The  complaint  was  dismissed  at  the  trial, 
covered,  putting  their  decision  upon  the  on  the  ground  that  the  cause  of  action 
allegation  of  a  warranty.  As  this  aver-  proved  was  on  contract,  while  the  one 
ment  stood  alone,  it  would  seem  that  it  pleaded  was  for  tort.  This  ruling  was 
ought  to  have  been  rejected  as  the  sur-  reversed,  the  Appellate  Court  saying  that 
plusage.  This  decision,  in  the  light  of  the  single  concluding  averment  of  a  con- 
more  recent  ones,  must  be  regarded  as  version  should  be  treated  as  surplusage, 
erroneous :  it  is  not,  however,  opposed  to  The  opinion  contains  an  elaborate  discus- 
the  leading  doctrine  stated  in  the  text.  sion  of  authorities.     This  and  the  preced- 

2  Austin  r.  Rawdon,  44  N.  Y.  63,  68,  ing  case  are  substantially  alike.  See 
69.  The  statement  of  a  wrongful  dispo-  also  By.xbie  v.  Wood,  24  N.  Y.  607,  610, 
sition  and  conversion  was  said  to  be  611,  in  which  certain  averments  of  fraud- 
merely  the  averment  of  a  breach.  There  ulent  practices  were  held  to  be  surplusage, 
can  be  no  doubt  as  to  the  correctness  of  and  the  cause  of  action  to  be  on  contract. 


ALLEGATIONS    AND    PROOFS   MUST   CORRESPOND.  607 

be  null  and  void,  the  claim  to  recover  was  put  at  the  trial  on  the 
ground  of  implied  contract,  —  a  warranty  of  title.  The  defend- 
ant moved  to  dismiss  the  complaint,  because  it  was  based  upon  the 
theory  of  fraud,  that  its  allegations  were  of  deceit  and  false  repre- 
sentations. The  reporter  does  not  think  best  to  disclose  the 
nature  of  the  complaint,  although  the  entire  decision  turned  upon 
it.     The  court  held  that  the  cause  of  action  was  on  contract.^ 

§  560.  The  following  are  instances  of  actions  ex  delicto.  In  a 
suit  growing  out  of  the  sale  of  a  horse  brought  by  the  vendee, 
the  complaint  was,  "  That  on,  &c.,  at,  &c.,  the  plaintiff  purchased 
a  certain  horse  of  the  defendant  for  the  agreed  price  of  -$120, 
and  paid  defendant  said  sum ;  that  the  defendant,  to  induce  the 
plaintiff  to  buy  the  said  horse,  falsely  and  fraudulently  represented 
the  said  horse  worth  and  of  the  value  of  8120,  and  guaranteed  '/ 
the  said  horse  to  be  sound  in  all  respects,  and  wholly  free  from 
disease  ;  that  said  horse  was  not  sound  or  free  from  disease,  but 
was  unsound  and  diseased  in  this  (describing),  which  said  disease 
was  well  known  to  defendant  at  the  time  of  the  sale,"  &c.,  to 
the  plaintiff's  damage,  &c.  This  cause  of  action  was  held  by 
the  New  York  Supreme  Court  to  be  for  deceit,  and  not  on  a  war- 
ranty.^    The  following  case  is  even  still  stronger ;  for  although  it 

1  Ledwich  v.   McKim,   53  N.  Y.  307,  avers  the  facts  wliicli  were  proven,  and 

316.     From  an  examination  of  the  record,  which  make  out  a  cause  of  action  in  con- 

I  am  able  to  state  the  exact  language  of  tract.     The  presence  of  tiie  averments  as 

the  complaint.     The   only  allegation  in-  to  the  representations,  even    were   they 

volving  the  question  at  issue  is,  that  on,  averred  to  have  been  false  and  fraudu- 

&e.,  the  defendants  sold  to  the  plaintiff  lent,  do  not  make  the  action  one  ex  de- 

certain  bonds  "  purporting  to  be  bonds  of  lido."     The  correctness  of  this  decision  is 

the  U.  S.  «&  T.  R.  R.  Co.,  and  represented  plain  ;  a  cause  of  action  on  contract  was 

by  said  defendants  to  be  such  bonds,  and  certainly  set  forth,  and  the  statements  as 

to  have  been  issued  by  and  binding  upon  to  representations  by  the  defendants  were 

said  R.  R.  Co.,  and  that,  in  consideration  not  sufficient  to  show  a  liability  on  ac- 

thereof,  and  relying  upon  the  representa-  count  of  fraud.      As  to   the   allegations 

tions   so   made,"   the   plaintiff   paid   the  which  must  be  made  and  proved  in  order 

price ;  that  the  bonds  were  valueless  ;  a  to  establish  a  cause  of  action  for  deceit, 

demand  on  the  defendants  for  a  repay-  see   Meyer   v.   Amidon,  45   N.   Y.   169 ; 

ment   of  the   price,   &c.     There  was   no  Oberlander    v.    Spiess,   45   N.    Y.    175 ; 

averment  of  knowledge  on  the  part  of  the  Marsh  v.  Falker,  40  N.  Y.  562  ;  Marshall 

defendants,  nor  of  an  intent  to  deceive,  v.  Gray,  57  Barb.  414;  Weed  v.  Case,  55 

This  certainly  falls  far  short  of  the  allega-  Barb.  534  ;  Gutchess  v.  Whiting,  46  Barb, 

tions  necessary  to  make   out  a  case  of  139. 

fraud.  Folger  J.  said  (p.  316),  after  re-  -  Moore  v.  Noble,  53  Barb.  425.  No 
citing  the  defendants'  claim,  and  the  scienter  was  proved,  and  the  plaintiff  re- 
averments  of  the  complaint  as  given  covered  for  a  breach  of  warrant}-.  The 
above  :  "  But  the  summons  is  not  for  re-  court,  in  reversing  this  ruling,  said  : 
lief:    it  is  for  money.     The   complaint  "That  the  complaint  is  for  deceit  in  the 


608 


CIVIL    REMEDIES. 


was  conceded  that  a  contract  was  fally  set  forth  in  the  pleading, 
yet  the  averments  of  fraud  were  held  to  fix  the  true  character  of 
the  action.  The  claim  was  for  damages  arising  from  the  sale  of 
a  horse,  and  sustained  by  the  purchaser.  The  complaint  alleged 
the  sale  ;  that  at  the  time  thereof  the  horse  was  lame  in  one  leg  ; 
tliat  defendant  icarranted  and  falsely  and  fraudulently  repre- 
sented that  this  lameness  resulted  from  an  injury  to  his  foot,  and 
nowhere  else  ;  that  when  his  foot  grew  out  he  would  l^e  well, 
and  that  he  had  only  been  lame  two  weeks  ;  that  plaintiff,  rely- 
ing upon  this  warranty  and  representation,  and  believing  them  to 
be  true,  bought  the  horse,  and  paid  the  price  [the  representa- 
tions were  then  negatived]  ;  that  the  horse  was  lame  in  his 
gambrel  joint,  and  had  been  so  for  a  long  time,  all  which  the 
defendant,  at  the  time  of  the  sale  and  the  making  such  warranty 
and  representations,  well  knew ;  that  by  reason  of  the  premises 
the  defendant  falsely  and  fraudulently  deceived  him,  —  to  his 
damage  of  $500.  The  cause  of  action  thus  stated  was  held  to 
be  for  deceit,  and  not  for  a  breach  of  warranty.^ 


sale,  wilfully  and  knowingly  perpetrated 
by  defendant,  is  manifest ;  to  give  any 
other  construction  would  be  to  violate 
all  the  rules  of  language  and  of  plead- 
ing." Also  that  it  was  necessary  for  the 
plaintiff  to  prove  the  substantial  aver- 
ments,—  tiie  knowledge  and  intent, — 
and  that  he  could  not  recover  on  a  con- 
tract of  warranty.  This  case  cannot  be 
distinguished  in  its  facts  from  Quintard 
i\  Newton,  supra,  and  implicitly  overrules 
that  decision. 

1  Ross  V.  Mather,  51  N.  Y.  108.  At 
the  trial  tiie  plaintiff  proved  a  warranty, 
but  gave  no  evidence  tending  to  show  any 
false  or  fraudulent  representation  or  in- 
tent to  deceive  on  the  part  of  the  de- 
fendant, and  was  permitted  to  recover. 
Hunt  J.,  for  the  Court  of  Appeals,  said : 
"  The  complaint  contains  all  tlie  elements 
of  a  complaint  for  a  fraud.  It  must  be 
lield  to  be  such,  unless  the  distinction  l)e- 
tween  the  two  forms  of  action  is  at  an 
end.  While  it  contains  all  that  is  neces- 
sary to  authorize  a  recovery  upon  a  con- 
tract, it  contains  much  more  [reciting  the 
allegations  as  above].  No  allegations 
could  have  been  inserted  which  would 
have  more  clearly  constituted  a  case  of 
fraud.     That  there   was   a  warranty   as 


^ 


well  as  representations,  or  that  both  are 
alleged  to  have  existed,  does  not  alter  the 
case.  ...  I  do  not  find  any  authorities 
in  the  courts  of  this  State  which  sustain 
the  position  that  this  complaint  may  1)6 
considered  as  an  action  for  a  breach  of 
warranty."  He  then  cites  Moore  v.  Noble, 
suprn ;  Marshall?'.  Gray,  57  Barb.  414; 
IVlcGovern  i-.  Payn,  32  Barb.  83,  all  of 
which  hold  the  causes  of  action  therein 
stated  to  be  fraud,  and  that  the  plaintiff 
must  prove  a  scienter ;  also  Walter  v. 
Bennett,  16  N.  Y.  250  ;  Belknap  v.  Sealey, 
14  N.  Y.  143,  which  hold  that,  when  the 
complaint  alleges  a  cause  of  action  for  a 
tort,  the  plaintiff  cannot  recover  on  con- 
tract, and  proceeds  as  follows  :  "  In  the 
present  case,  the  plaintiff  made  a  state- 
ment of  facts  which  did  not  constitute  his 
cause  of  action.  The  code  never  intended 
that  a  party  who  had  failed  in  the  per- 
formance of  a  contract  merely  should  be 
sued  for  a  fraud  ;  or  that  a  party  who  had 
committed  a  fraud  should  be  sued  for  a 
breach  of  contract,  unless  the  fraud  was 
intended  to  be  waived.  The  two  causes 
of  action  are  entirely  distinct ;  and  tliere 
can  be  no  recovery  as  for  a  breach  of 
contract  when  a  fraud  is  the  basis  of  tlie 
complaint.      Conaughty    v.   Nichols,   42 


ALLEGATIONS    AND    PROOFS   MUST   CORRESPOND. 


609 


§  561.  The  doctrine  that  a  cause  of  action  ex  contractu  cannot 
be  proved  at  the  trial  when  the  comphiint  or  petition  states  one 
ex  delicto  has  been  applied  to  the  following  classes  of  cases  : 
where  the  complaint  alleged  improper,  careless,  and  negligent 
conduct,  and  concealment  of  material  facts  by  the  defendant ;  ^ 
where  the  complaint  was  for  the  conversion  of  goods  or  moneys, 
and  the  plaintiff,  at  the  trial,  relied  upon  the  breach  of  an  implied 
contract  for  money  had  and  received ;  ^  where  the  suit  was 
brought  to  recover  the  possession  of  personal  proJ)erty,  and  the 
cause  of  action  as  proved  was  for  money  had  and  received,  or 
money  due  upon  a  general  indebtedness;^  and  finally  where  a 
case  of  deceit  and  fraudulent  representations  was  stated,  and  the  / 
proof  established  tlie  breach  of  a  contract.^  In  addition  to  tlie 
general  doctrine,  that  a  party  should  be  fully  and  truly  apprised 
of  the  nature  of  the  claim  set  up  against  him,  there  is  a  special 
reason  why  the  plaintiff  cannot  recover  for  a  breach  of  contract 


N.  Y.  83,  is  the  only  authority  cited  to 
the  contrary,  and  it  does  not  sustain  tiiat 
position." 

1  Rothe  V.  Kothe,  31  Wise.  570,  572. 
The  court  further  held  that  tlie  rule  must 
be  applied,  even  though  the  allegations 
of  tort  failed  to  state  a  sufficient  ground 
for  a  recovery,  if  they  were  enough  to  de- 
termine the  nature  of  the  cause  of  action. 

2  Anderson  v.  Case,  28  Wise.  505,  508  ; 
Supervisors  v.  Decker,  30  Wise.  624 ; 
Johannesson  v.  Borschenius,  35  Wise.  131, 
135;  Walter  v.  Bennett,  16  N.  Y.  250. 
In  Anderson  v.  Case,  Lyon  J.  said  (p. 
508)  :  "  The  plaintiffs  contend,  however, 
that,  although  they  liave  failed  to  estab- 
lish their  right  to  recover  in  ilds  form  of 
action  for  the  conversion  of  the  property, 
they  have  proved  their  right  to  recover 
the  proceeds  of  the  sale  thereof  in  an  ac- 
tion for  money  had  and  received,  and 
that  therefore  the  verdict  and  judgment 
should  not  be  disturbed.  .  .  .  The  dis- 
tinction between  an  action  for  the  wrong- 
ful conversion  of  property  and  an  action 
for  money  had  and  received  is  not  merely 
technical  or  formal,  but  is  a  substantial 
one.  The  former  is  an  action  ex  delicto, 
the  latter  ex  contractu.  In  the  one,  execu- 
tion goes  against  the  bodj',  in  the  other 
against  the  property  only,  of  the  defend- 
ant.    The  defendants  in  this  action  are 


liable  to  be  imprisoned  by  virtue  of  an 
execution  issued  upon  the  judgment 
against  them  ;  while  they  would  not  be 
so  liable  were  this  an  action  for  money 
had  and  received."  The  opinion  of 
Dixon  C.  J.  in  Supervisors  v.  Decker  is 
the  most  elaborate,  and  one  of  the  most 
able  and  exhaustive  discussions  on  tlie 
nature  of  pleading  in  general  under  the 
reformed  system  to  be  found  in  the  re- 
ports. 

3  Sager  v.  Blain,  44  N.  Y.  445,  448, 450. 

*  De  Graw  v.  Elmore,  50  N.  Y.  1 ; 
Ross  V.  Mather,  51  N.  Y.  108;  Moore  v. 
Noble,  53  Barb.  425 ;  Watts  v.  McAllister, 
33  Ind.  264 ;  Dean  v.  Yates,  22  Ohio  St. 
388,  397.  When  a  complaint  sets  out  a 
cause  of  action  upon  contract,  and  not  for 
tort,  as,  for  example,  to  recover  money 
had  and  received  by  the  defendant  to  the 
plaintiff's  use,  any  averments  as  to  the 
nature  of  the  defendant's  employment 
showing  that  it  was  of  a  fiduciary  charac- 
ter, and  the  like,  are  wholly  immaterial; 
they  form  no  part  of  the  cause  of  action, 
and  are  not  issuable.  Where  no  order  of 
arrest  has  been  granted  in  such  an  action, 
the  judgment  cannot  be  enforced  by  a 
body  execution  ;  and  a  clause  in  the  judg- 
ment permitting  a  body  execution  will 
be  struck  out  on  appeal.  Prouty  v.  Swift, 
51  N.  Y.  594,  601. 
89 


610  CIVIL   REMEDIES. 

when  the  cause  of  action  stated  in  the  record  is  for  deceit  or  any- 
other  tort.  In  many  actions  of  tort  the  defendant  may  be  taken 
on  a  Lody  execution,  issued  upon  the  judgment ;  while  a  simple 
breach  of  contract  never  exposes  him  to  that  liability.  If,  there- 
fore, a  cause  of  action  on  contract  could  be  proved  and  judg- 
ment thereon  recovered  when  one  for  tort  was  alleged,  the 
record  might  show  a  case  for  arrest  on  final  process,  although  the 
issues  actually  tried  involved  no  such  consequence.^ 

§  562.  I. shall  conclude  this  subdivision  by  quoting  some  pas- 
sages from  the  most  able  and  practically  instructive  opinion  of 
Mr.  Chief  Justice  Dixon  in  the  case  of  Supervisors  v.  Decker.^ 
The  whole  theory  of  pleading  is  discussed  in  this  elaborate  judg- 
ment; but  it  is  peculiarly  appropriate  in  connection  with  the 
subjects  of  insufficiency,  redundancy,  and  immateiiality  of  alle- 
gations. "  It  would  certainly,"  he  said,  "  be  a  most  anomalous 
and  hitherto  unknown  condition  of  the  law  of  pleading,  were  it 
established  that  the  plaintiff  could  file  a  complaint,  the  particu- 
lar nature  and  ol)ject  of  which  no  one  could  tell,  but  which 
might  and  should  be  held  good  as  a  statement  of  two  or  three  or 
more  different  and  inconsistent  causes  of  action,  as  one  in  tort, 
one  upon  a  money  demand  upon  contract,  and  one  in  equity, 
all  combined  or  fused  and  moulded  into  one  count,  so  that  the 
defendant  must  await  the  events  of  the  trial,  and  until  the  plain- 
tiff's proofs  are  all  in,  before  being  informed  with  any  certainty 
or  definiteness  what  he  was  called  upon  to  meet.  The  proposi- 
tion that  a  complaint  or  an}^  single  count  of  it  may  be  so  framed 
with  a  double,  treble,  or  any  number  of  aspects,  looking  to  so 
many  distinct  and  incongruous  causes  of  action,  in  order  to  hit 
the  exigencies  of  the  plaintiff's  case  or  any  j)ossible  demands  of 
his  proofs  at  the  trial,  we  must  say  strikes  us  as  something 
exceedingly  novel  in  the  rules  of  pleading.  We  do  not  think  it 
is  the  law,. and,  unless  the  legislature  compels  us  by  some  new 
statutory  reg.ulation,  shall  hereafter  be  very  slow  to  change  this 
conclusion.     The  defendant  supposes  the  complaint  herein  to  be 

1  This  special  reason  for  the  rule   is  use,   he    being    Clerk   of    the   Board   of 

alluded  to   in   several   of  the   foregoing  Supervisors.     The    complaint   contained 

cases.  averments  of  fraud,  of  negligence,  of  con- 

2  Supervisors  v.  Decker,  30  Wise.  024,  version,  and  of  contract.     A  demurrer  to 

626.     The  action  was  brought  to  recover  it  having  been  overruled,  the  defendant 

money  of  the  county  alleged  to  have  been  appealed, 
converted  by  the  defendant  to  ids  own 


ALLEGATIONS    AND   PROOFS   MUST   CORRESPOND.  611 

intended  to  be  one  in  trover,  charging  or  seeking  to  charge  the 
defendant  with  the  wrongful  conversion  of  certain  moneys 
which  came  into  his  hands  as  a  public  officer,  and  which  belonged 
to  the  plaintiff;  and  acting  upon  such  supposition,  he  has  demurred 
to  the  complaint  as  not  stating  facts  sufficient  to  constitute  that 
cause  of- action.  In  answer  to  this  view,  the  plaintiffs  rather 
concede  than  otherwise  that  the  complaint  is  and  was  intended  to 
be  one  irt  tort  for  the  conversion ;  but  at  the  same  time  they 
•insist,  that,  if  it  is  not  good  as  a  complaint  of  that  kind,  it  is  suffi- 
cient as  a  complaint  or  count  in  an  action  for  money  had  and 
received ;  and,  being  sufficient  for  that  purpose,  they  argue  that 
the  demurrer  was  properly  overruled.  In  other  words,  their 
position  is,  that  it  is  a  question  now  open  to  speculation  and 
inquiry  on  this  demurrer,  whether  upon  all  or  au}^  of  the  facts 
stated  in  the  complaint  taken  collectively  or  separately,  or  even 
by  severing  the  allegations  themselves  so  as  to  eliminate  or  dis- 
card certain  portions  of  them  as  surplusage,  a  cause  of  action  of 
any  kind  is  or  can  be  made  out ;  and  if  it  be  found  that  it  can, 
then  the  demurrer  should  be  overruled.  To  show  that  the  com- 
plaint may  be  upheld  as  one  for  money  had  and  received  for  the 
use  of  the  plaintiff,  and  the  action  considered  as  one  of  that 
kind,  counsel  gravely  contend  that  the  averments  that  the  defend- 
ant made  fraudulent  representations,  and  acted  falsel}',  fraudu- 
lently, and  wrongfully  in  claiming  and  withholding  the  moneys, 
and  that  he  converted  the  same,  &c.,  may  be  disregarded,  and 
rejected  as  surplusage. 

§  563.  "  In  support  of  this  position,  counsel  cited  several  New 
York  decisions,  and  some  in  this  court  where  after  trial  and 
judgment,  or  after  issue  has  been  taken  on  the  merits,  or  after  the 
trial  has  commenced  and  the  plaintiff  ^s  case  is  closed,  it  has  been 
held  that  such  allegations  may  be  disregarded.  The  decisions 
were  in  actions  like  the  present,  and  others  involving  a  some- 
what similar  question  under  the  circumstances  above  stated,  and 
were  made  in  favor  of  a  good  cause  of  action  proved  or  proposed 
to  be,  and  which  by  a  fair  and  reasonable  interpretation  of  the 
pleadings  could  be  said  to  be  within  the  scope  of  them,  or  to  be 
fairl}'  mapped  out  and  delineated  by  the  averments,  so  that  the 
defendant  was  apprised  of  the  demand  made  against  him,  and  of 
the  facts  relied  upon  to  establish  it.  The  great  liberality  of  the 
code  and  the  broad  powers  of  amendment  conferred  and  enforced 


,X 


612  CIVIL   REMEDIES. 

upon  the  courts  under  such  circumstances  are  well  known  [citing 
provisions  in  reference  to  amendments,  variances,  and  the  inter- 
pretation of  pleadings].  These  provisions  for  the  most  part,  if 
not  entirely,  relate  to  the  proceedings  in  an  action  after  issue 
joined  on  the  merits  upon  or  after  trial,  or  after  judgment  on  the 
merits,  when  the  facts  are  made  to  appear,  and  the  substantial 
rights  of  the  parties  are  shown.  They  are  enacted  in  amplifi- 
cation and  enlargement  of  the  rules  of  the  common  law  on  the 
same  subject,  by  which  it  is  well  understood  that  there  were 
many  defects,  imperfections,  and  omissions  constituting  fatal 
objections  on  demurrer,  which  were  waived  after  issue  joined,  and 
a  trial  or  verdict  and  judgment  on  the  merits.  The  cases  cited 
by  counsel  are  all  of  them  manifestly  such  as  fall  within  these 
provisions  and  rules,  and  none  of  them  touch  or  have  any  bear- 
ing upon  the  question  or  case  here  presented.  No  case  arising 
upon  demurrer  to  the  complaint  is  cited,  and  it  is  believed  none 
can  be,  holding  any  such  doctrine  as  that  contended  for.^ 

§  564.  "  It  thus  appears  that  the  authorities  relied  upon  do  not 
sanction  the  position  that  a  complaint  in  the  first  instance,  and 
when  challenged  by  demurrer,  may  be  uncertain  and  ambulatory, 
purposely  so  made,  now  presenting  one  face  to  the  court  and  now 
another,  at  the  mere  will  of  the  pleader,  so  that  it  may  be 
regarded  as  one  in  tort  or  one  on  contract  or  in  equity,  as  he  is 
pleased  to  name  it,  and  as  the  necessities  of  the  argument  may 
require,  and,  if  discovered  to  be  good  in  any  of  the  phases  which 
it  may  thus  be  made  to  assume,  that  it  must  be  upheld  in  that 
aspect  as  a  proper  and  sufficient  pleading  by  the  court.  As 
alread}^  observed,  the  opinion  of  the  court  is  quite  to  the  con- 
trary. We  have  often  held  that  the  inherent  and  essential  differ- 
ences and  peculiar  properties  of  actions  have  not  been  destroyed, 

^  The  learned  judge  cites  the  following  Wise.  310,  328.     It  is  certain  that  the 

cases  as  illustrations :  Barlow  v.  Scott,  24  decision  in  some  of  these   cases   is  not 

N.  Y.  40;  Byxbie  V.  Wood.  24  N.  Y.  607  ;  based  upon  the   doctrine  stated   by   the 

Austin  I'.  Rawdon,  44  N.  Y.  63  ;  Greason  judge,  —  that    is,    upon    any    ground    of 

V.  Keteltas,  17  N.  Y.491  ;  Emery  r.  Pease,  amendment  or  of  waiving  the  objection  by 

20  N.  Y.  62;  Conaughty  v.  Nichols,  42  answering,  &c. ;  but  it  is  put  upon  tiie 

N.  Y.  83 ;  ^V right  v.  Hooker,   10  N.  Y.  broad   and   fundamental   principle,  that, 

51  ;  Walter   v.   Bennett,  16  N.    Y.  250 ;  under  the  codes,  equitable  and   legal  re- 

Stroebe  v.  Fehl,  22  Wise.  347 ;  Hopkins  liefs  may  bo  granted  in  the  same  action, 

V.  Oilman,  22  Wise.  481 ;  Tenney  v.  State  or  one  may  be  granted  when  the  other  is 

Bank,  20  Wise.  152 ;  Leonard  v.  Hogan,  demanded  :     the   otlier   cases,    however, 

20   Wise.    540 ;    Samuels    v.   Blanchard,  fully  sustain   the  position  taken  by  the 

25    Wise.    329 ;      Vilas    v.    Mason,     25  opinion. 


ALLEGATIONS   AND    PROOFS    MUST    CORRESPOND.  613 

and  from  their  very  nature  cannot  be.^  These  distinctions  con- 
tinuing, they  must  be  regarded  by  the  courts  now  as  formerly ; 
and  now  no  more  than  then,  except  under  the  peculiar  circum- 
stances above  noted,  can  any  one  complaint  or  count  be  made  to 
subserve  the  purposes  of  two  or  more  distinct  and  dissimilar 
causes  of  action,  at  the  option  of  the  party  presenting  it.  If 
counsel  disagree  as  to  the  nature  of  the  action  or  purposes  of  the 
pleading,  it  is  the  province  of  the  courts  to  settle  the  dispute.  It 
is  a  question,  when  properly  raised,  which  cannot  be  left  in  doubt : 
and  the  court  must  determine  with  precision  and  certainty  upon  in- 
spection of  the  pleading  to  what  class  of  actions  it  belongs,  or  was 
intended  to  belong,  whether  of  tort,  upon  contract,  or  in  equity ; 
and  if  necessary  and  material,  even  the  exact  kind  of  it  within  the 
class  must  also  be  determined. ^  This  is  not  only  in  harmony  with 
the  decisions  above  referred  to,  but  with  all  the  decisions  of  this 
court  bearing  upon  the  question,  and  we  know  of  none  elsewhere 
in  conflict.  It  is  in  harmony  with  these  decisions  which  have 
been  made,  that  an  application  to  amend  should  be  denied  which 
professes  to  entirely  change  the  cause  of  action  sued  upon,  or  to 
introduce  a  new  one  of  a  different  kind."  ^  The  nature  oi  the 
reformed  pleading  and  its  essential  principles  are  here  stated  in 
a  most  clear  and  accurate  manner,  while  the  description  of  the 
improper  modes  which  prevail  to  such  an  extent  in  actual  prac- 
tice is  equally  graphic  and  correct.     The  one  explains  the  intent 

1  Howland  v.  Needhara,  10  Wise.  495,  and  this  particular  conclusion  is  also  sus- 
498.  tained   by  the  recent  decision  made  by 

2  See  Clark  ;'.  Langwortliy,  12  Wise,  the  New  York  Court  of  Appeals,  before 
441 ;  Gillett  v.  Treganza,  13  Wise.  472.  cited.     Having  thus   laid  down  the  gen- 

*  Citing    Newton   v.    Allis,    12    Wise,  eral  principles,  the  learned  judge  applies 

378  ;    Sweet   i'.  Mitchell,   15   Wise.    641,  them  to  the  case  before  him.     The  sura- 

6r>4;  19  Wise.  524 ;  Larkin  i\  Noonan,  19  mons   is  for   relief,  which   indicates   the 

Wise.  82  ;  Stevens   v.  Brooks,  23   Wise,  pleader's  intention  to  bring  an  action  of 

196.     The  opinion  proceeds  to  show  that  tort,  and  not  one  on  implied  contract  for 

the  conclusion  thus  reached  is  in  harmony  money  had  and  received.     The  complaint 

with  the  decisions  made  in  Scheunert  v.  itself    is    pronounced   insufficient   in   its 

Kaehler,  23  Wise.  523  ;  Anderson  v.  Case,  averments  ;    the   charges    of   fraud   and 

28  Wise.  505 ;  Lee  v.  Simpson,  29  Wise,  conversion   are   in    the   form    of  general 

333  ;    Kagan  v.  Simpson,  27    Wise.  355 ;  legal   inferences,  without   the   necessary 

Samuels  v.  Blanchard,  25  Wise.  329.     It  statements  of  facts.     "  A  general  charge 

also  declares  that  in  determining   upon  that  a  party  acted  fraudulently,  falsely, 

demurrer   the  true   nature   of  the   com-  or  wrongfully,  or  that  he  made  fraudulent 

plaint,   its   object,    and   what    particular  representations  or  statements,  amounts  to 

kind  or  cause  of  action  is  stated  in  it,  the  nothing  ;  there  must  be  a  specification  of 

character  of  the  summons  may  be  taken  facts  to  justify  it"  (p.  634).     The  fore- 

into  consideration  in  connection  with  the  going  quotations   form    a   small  part  of 

form  of  the  allegations  in  the  complaint;  this  exceedingly  instructive  opinion. 


614  CIVIL   REMEDIES. 

and  design  of  the  reform  ;  the  other  shows  how  that  design  has 
been  ignored,  and  that  intent  frustrated. 

§  5C)5.  The  new  procedure,  from  its  dread  lest  the  proper  re- 
quirements as  to  form  should  degenerate  into  mere  technicalities, 
and  from  its  opposition  to  the  dedsion  of  controversies  upon 
points  not  involving  the  merits,  has  made  most  ample  and  liberal 
provision  for  amendments.  The  sections  of  the  codes  are  quoted 
at  large  in  a  former  paragraph.^  So  far  as  they  relate  to  the  plead- 
ings, amendments  are  separated  into  two  general  classes,  —  those 
made  before  the  trial,  and  those  made  during  or  after  the  trial. 
The  first  of  these  classes  is  again  subdivided  into  (1)  the 
amendments  of  course,  without  any  application  to  the  court, 
which  each  party  is  allowed  to  Inake  once  in  his  own  pleading 
within  a  specified  time  after  it  is  filed  or  served ;  (2)  the 
amendments  which  are  made  .by  permission  of  the  court  as  the 
result  of  a  special  motion  or  application  for  that  purpose,  includ- 
ing those  which  the  party  is  generally  suffered  to  make  in  his 
pleading  after  a  demurrer  to  it  has  been  sustained.  The  amend- 
ments of  the  second  class  are  for  the  purpose  of  conforming  the 
pleadings  to  the  facts  which  have  been  proved,  or  which  are  pro- 
posed to  be  proved,  at  the  trial.  They  are  all  made  by  permis- 
sion of  the  court,  frequently  upon  an  oral  application  during  the 
trial  or  during  the  argument  on  appeal,  often  by  the  court  itself 
on  its  own  suggestion.  Sometimes,  however,  the  trial  is  sus- 
pended, and  the  party  desiring  an  amendment  is  driven  to  a 
formal  motion  in  order  to  obtain  it.^  It  is  not  within  the  scope 
of  this  work  to  describe  the  practice  in  reference  to  amendments, 
nor  to  discuss  the  particular  cases  in  which  they  have  been  or 
will  be  allowed.  I  shall  simply  state  the  general  principles 
which  have  governed  the  courts  in  the  exercise  of  the  discretion 
conferred  upon  them  by  the  statute. 

§  oGG.  In  giving  a  practical  interpretation  to  the  clauses  of  the 
codes,  a  conflict  of  decision  has  arisen  among  the  tribunals  of 
the  different  States,  and  sometimes  among  those  of  the  same 
State,  which  it  is  utterly  impossible  to  reconcile.  The  rule 
is  established  by  one  class  of  cases,  and  prevails  in  certain 
States,  that  in  all  the  voluntary  amendments  which  a  party 
may  make  as  a  matter  of  course  in  his  own  pleadings,  and  in  all 

1  See  su/rra,  §  435.  longs  to  tlie  first  general  class,  since  it  is 

2  This  particular  instance  strictly  be-     virtually  an  amendment  before  the  trial. 


AMENDMENTS    OF   PLEADING3.  615 

amendments  before  trial  for  which  the  party  applies  to  the  court 
by  motion,  including  those  rendered  necessary  by  the  sustaining 
of  a  demurrer  to  his  pleading,  he  cannot  under  the  form  of  an 
amendment  change  the  nature  and  scope  of  his  action ;  he  can- 
not substitute  a  wholly  different  cause  of  action  in  place  of  the 
one  which  he  attempted  to  set  up  in  his  original  pleading. ^  A 
very  different  rule  is  laid  down  by  another  class  of  cases.  It  is 
settled  in  New  Ydrk  by  a  carefully  considered  decision  of  the 
Court  of  Appeals,  which  overrules  a  number  of  contrary  deci- 
sions made  by  inferior  tribunals  of  that  State,  that  a  complaint 
may  be  amended  voluntarily  and  of  course,  by  substituting  an 
entirely  different  cause  of  action  for  the  one  originally  alleged, 
provided  the  summons  continues  to  be  appropriate.  It  is  not 
necessary  that  the  new  cause  of  action  should  be  of  the  same 
general  nature  or  class  as  the  first  one  ;  but  the  plaintiff  may,  by 
omitting  a  cause  of  action,  substitute  another  in  its  stead  of  an 
entirely  different  class  and  character,  if  the  change  does  not 
require  an  alteration  in  the  summons.  A  like  rule  it  was  held 
also  applies  to  answers  and  to  defences  contained  therein.^  In 
some    States  this  liberal   interpretation   of    the   code    has  been 

'  Supervisors    v.   Decker,    34    Wise,  pressly  disapproved.    It  should  be  noticed 

378;  Ilutledge  v.  Vaniueter,  8  Busli,  354,  that  tlie  actual  substantial  cause  of  action 

356  ;  McGrath  v.  Balser,  6  B.  Mon.  141.  was  unchanged  ;  the  only  variation  was 

In   Supervisors   v.    Decker,   a   complaint  in  the  manner  and  form  of  its  statement, 
had  been  served  which  was  in  tort,  and  -  Brown  v.  Leigh,  12  Abb.  Pr.  n.  s. 

which  attempted  to  state  a  cause  of  ac-  193  (1872).     See  also,  to  the  same  effect, 

tion   for   the  conversion   of  money   and  Mason  r.  Whitely,  1  Abb.  Pr.  85  ;  4  Duer, 

things  in  action.     A  demurrer  had  been  611;    Prindle    v.    Aldrich,    13    How.  Pr. 

sustained  on  the  ground  that  the  aver-  466  ;    Troy  and  B.  R.  R.  v.  Tibbits,   11 

ments  were  insufficient,  but  permission  How.  Pr.  168 ;   Watson  v.  Rushmore,  15 

to  amend  was  given.     An  amended  com-  Abb.  Pr.  51.     Some  of  these  cases  apply 

plaint  was  served  which  was  exactly  the  the  same  doctrine  to  amendments  made 

same  as  the  original,  excei)t  that  the  alle-  upon  motion.     By  this  rule,  an  entirely 

gations  "and  converted  the  same  to   his  new  defence  may  be  added  to  an  answer 

own  use,"  and  the    like,   were   omitted,  by  an  amendment  of  course.     McQueen 

The  summons  for  relief  was  unchanged,  v.   Babcock,  13   Abb.  Pr.  268 ;  3  Keyes, 

The  questions  arose  on  a  motion  by  the  428  ;  Wyman  v.  Remond,    18   How.  Pr. 

defendant  to  take  this  amended  complaint  272.     Although   the    Court   of  Appeals, 

from  the  files.     The  court  held  that  be-  in  Brown  y.  Leigh,  pointed  out  a  difference 

fore  trial  the  plaintiff  cannot  amend  the  between  the  terms  of  the  section  which 

complaint  by  changing  the  entire  cause  permits   amendments   of    course   and   of 

of  action  from  one  ex  delicto  to  one  ex  con-  that  which  allows  aiuendments  upon  ap- 

tracttt.     The  whole  subject  of  amendment  plication  to  the  court  before  trial,  yet  it 

was  exhaustively  discussed ;    prior  deci-  did  not  hold   that  the  latter  were  to  be 

sions  of  the    VVisconsin   court  were  ad-  any  more   restricted  in    their  scope  and 

hered   to,    while   the    New   York    cases  extent  than  the  former, 
which  sustain  another  doctrine  were  ex- 


616  CIVIL    REMEDIES. 

expressly  extended  to  those  amendments  wlneh  require  the  con- 
sent of  the  court  granted  upon  a  motion,  and  the  rule  is  settled 
that  even  in  that  class  the  cause  of  action  or  defence  may  be 
entirely  changed.^  In  respect  to  the  amendments  made  at  the 
trial,  or  on  appeal,  or  by  the  court  upon  its  own  motion,  great 
freedom  is  used,  provided  the  parties  are  not  misled  and  sur- 
prised, and  the  issues  to  be  decided  are  not  wholly  changed. 
When  evidence  has  been  received  without  ol)jection  making  out 
a  cause  of  action,  and  especially  after  a  favorable  verdict  upon 
such  evidence,  the  utmost  liberality  is  shown  by  the  courts  in 
conforming  the  averments  of  the  pleading  to  the  case  as  proved, 
if  the  ends  of  justice  will  be  subserved  thereby .^  The  plaintiff 
cannot,  however,  have  his  summons  and  complaint  amended  dur- 
ing the  trial  by  substituting  a  different  defendant  for  the  single 
one  who  was  sued,  and  who  had  appeared  and  defended.-^ 

§  567.  Election  between  actions  ex  delicto  and  those  ex  contractu. 
Intimately  connected  with  the  questions  last  discussed,  as  to  the 
proper  forms  of  actions  and  the  correspondence  between  the 
allegations  and  the  proofs,  is  the  subject  indicated  by  this  head- 
ing ;  that  is,  the  power  held  by  the  plaintiff,  under  certain  circum- 
stances, of  choosing  whether  he  will  treat  his  cause  of  action  as 
arising  from  tort  or  from  contract.  This  right  of  election  some- 
times occurs  when  the  contract  is  express,  —  but,  on  account  of  the 
tortious  acts  of  the  defendant,  the  plaintiff  may  disregard  it,  and 
sue  directly  for  the  wrong.  In  the  great  majority  of  instances, 
however,  the  contract  invoked,  and  made  the  basis  of  the  suit,  is 
implied.  The  theory  of  the  implied  promise,  and  its  invention 
in  order  that  certain  classes  of  liabilities  might  be  enforced  by 
means  of  the  action  of  assumpsit,  have  been  already  explained. 
As  the  fictitious  promise  was  implied  or  inferred  by  the  law  from 

1  This  is  particularly  the  case  in  North  its  original  form  to  one  for  the  foreclos- 

Carolina,  where  the  greatest  liberality  of  ure  ot  this  mortgage, 

amemlment  prevails.     Robinson  v.   Wil-  ^  Supervisors  v.  Decker,  34  Wise.  378  ; 

loughby,  07  N.  C.  84  ;  Bullard  v.  Johnson,  Hoilge  v.  Sawyer,  34  AVisc.  397  ;  Bowman 

65  N.  C.  436.     In  the  first  case  the  action  v.  Van   Kuren,  29  Wise.  209,  215  ;  Smith 

was  brought  to  recover  possession  of  land  v.   Whitney,  22  Wise.  438;  Robinson   v. 

under  a  deed  absolute  on  its  f\ice  (eject-  Willougiiby,    67   N.    C.   84  ;    Bullard   v. 

ment).     The  court,  on  appeal,  held  that  Johnson,  65  N.  C.  436 ;  Gates  v.  Kendall, 

this  deed  was  in  fact  a  mortgage,  and  re-  67  N.  C.  241. 

versed  a  judgment  obtained  by  the  plain-  ^  Little  v.  Virginia,  &c.  Water  Co.,  9 

tiff,    ordering   a  new    trial.     Before   the  Nev.   317.      The   reporter's   headnote  is 

second    trial,   an    amendment   wa.s    per-  much  broader  than  the  decision  actually 

niitted  changing  the  cause  of  action  from  made,  and  is  manifestly  erroneous. 


ELECTION   BETWEEN    ACTIONS.  617 

acts  or  omissions  of  the  defendant  which  created  a  liabiHty  ex 
aequo  et  bono,  it  sometimes  happened  that  these  acts  or  omissions 
were  tortious  in  their  nature.  In  such  a  case,  therefore,  the 
liability  could  be  regarded  in  a  double  aspect ;  namely,  as  directly 
springing  from  the  tort  committed  by  the  wrong-doer,  or  as  aris- 
ing from  the  promise  to  make  compensation  which  the  law  im- 
plied and  imputed  to  him.  As  the  single  liabilit}'^  thus  resulting 
from  the  given  acts  or  omissions  was  considered  under  these  two 
different  aspects,  the  common  law  provided  two  distinct  means 
or  instruments  for  enforcing  it,  —  one  by  the  form  of  action  appro- 
priate for  the  recovery  of  damages  from  the  tort,  the  other  by  the 
form  of  action  appropriate  for  the  recovery  of  damages  from  the 
breach  of  an  implied  promise.  In  what  instances  —  that  is,  in 
Avhat  classes  of  tortious  acts  or  omissions  —  the  right  of  action 
existed  had  been  determined  by  the  courts,  although  there  was 
not  a  complete  uniformity  of  decision  among  the  tribunals  of  the 
several  States. 

§  568.  The  doctrine  of  electing  between  an  action  ex  delicto 
and  one  ex  contractu^  or,  to  speak  more  accurately,  between  treat- 
ing the  cause  of  action  as  arising  from  tort  or  from  contract,  has 
been  retained  under  the  new  procedure ;  and  it  is  applied  in  the 
same  classes  of  cases,  and  is  governed  by  the  same  general  rules, 
as  in  the  former  system.  The  courts,  without,  perhaps,  appre- 
ciating the  full  extent  of  the  changes,  and  the  effect  of  abolishing 
all  distinctions  between  forms  of  actions,  decided  that  the  power 
of  choice  between  the  two  modes  of  enforcing  demands,  of  waiv- 
ing the  tort  and  suing  upon  an  implied  promise,  still  exists  ; 
and  these  early  decisions  have  been  followed  by  so  many  others 
without  an  expression  of  dissent,  that  the  rule  is  as  firmly  estab- 
lished in  the  reformed  as  it  was  in  the  common-law  pleading. 
The  single  principle  upon  which  the  entire  doctrine  rests  is  very 
simple,  and  should  —  and  would,  if  the  courts  were  always  con- 
sistent in  acting  upon  it  —  afford  a  ready  and  plain  solution  of 
every  question,  new  or  old,  which  can  be  suggested.  This  single 
principle  may  be  thus  formulated :  From  certain  acts  or  omis- 
sions of  a  party  creating  a  liability  to  make  compensation  in 
damages,  the  law  implies  a  promise  to  pay  such  compensation. 
Whenever  this  is  so,  and  the  acts  or  omissions  are  at  the  same 
time  tortious,  the  twofold  aspect  of  the  single  liability  at  once 


618  CIVIL   REMEDIES. 

follows,  and  the  injured  party  may  treat  it  as  arising  from  the 
tort,  and  enforce  it  by  an  action  setting  forth  the  tortious  acts  or 
defaults  ;  or  may  treat  it  as  arising  from  an  implied  contract,  and 
enforce  it  by  an  action  setting  forth  the  facts  from  which  the 
promise  is  inferred  by  the  law.  It  should  be  remembered  that 
different  promises  may  be  inferred  from  different  acts  or  omis- 
sions :  thus,  in  one  case,  the  promise  might  be  to  pay  over  money 
had  and  received  to  the  use  of  the  injured  party  ;  and  in  another, 
where  no  money  had  been  actually  received,  the  implied  under- 
taking might  be  that  the  wrong-doer  would  pay  the  value  or 
price  of  goods  taken  by  him.  This  distinction,  so  palpable  and 
commonplace,  seems  to  have  been  overlooked  in  some  classes  of 
decisions. 

§  569.  Having  thus  formulated  the  general  principle  which 
prevailed  in  the  former  procedure,  and  which  has  been  adopted 
to  its  full  extent  in  the  present,  I  shall,  in  its  further  illustration, 
state  the  various  classes  of  cases  to  which  it  has  been  applied  by 
the  courts,  and  shall  thus  ascertain  the  particular  instances  — 
the  kinds  of  wrongful  acts  and  omissions  —  in  which  the  right  of 
election  exists.  To  this  will  be  added  a  few  observations  upon 
the  mode  of  indicating  the  fact  that  an  election  has  been  made 
by  the  pleader,  that  a  tort  has  been  waived,  and  a  cause  of  action 
upon  contract  has  been  chosen.  The  most  common  classes  of 
tortious  acts,  in  respect  of  which  the  right  of  election  has  been 
invoked,  are  the  wrongful  taking,  or  conversion  of  chattels,  or 
things  in  action,  or  money  ;  the  wrongful  use  of  lands,  and  ap- 
propriation of  its  rents  and  profits  ;  sales  of  goods  on  a  credit 
procured  by  the  fraud  of  the  purchaser  ;  frauds  and  deceits 
generally  by  which  money  or  things  in  action,  or  chattels,  are 
obtained ;  and  certain  cases  of  express  contract,  in  which,  from 
the  policy  of  the  law,  the  liability  is  regarded  as  resulting  from  a 
violation  of  general  duty  as  well  as  from  a  breach  of  the  stipu- 
lations of  the  agreement.  These  classes  will  be  considered  sepa- 
rately. It  is  a  firmly  established  rule,  from  which  no  dissent  has 
been  suggested,  that  when  goods  or  things  in  action  have  under 
any  circumstances  been  wrongfully  taken  or  detained  or  con- 
verted, and  have  been  sold  or  disposed  of  by  the  wrong-doer,  the 
owner  may  sue  in  tort  to  recover  damages  for  the  taking  and 
carrying  away  or  the  conversion,  or  he  may  waive  the  tort  and 


ELECTION   BETWEEN   ACTIONS. 


619 


sue  on  the  implied  promise  to  refund  the  price  or  value  as  money 
had  and  received  to  the  plaintiff's  use.^  When,  however,  the 
chattels  or  things  in  action  have  been  simply  taken  or  converted, 
but  not  sold  or  disposed  of  by  the  wrong-doer,  a  conflict  of 
opinion  exists  in  respect  to  the  power  of  the  plaintiff  to  elect 
between  the  two  forms  of  action.  Certain  cases  deny  this  power. 
This  ruling  is  rested  upon  the  ground  that  the  goods  remaining 
in  the  hands  of  the  wrong-doer,  and  no  money  having  in  fact 
been  received  by  him,  an  implied  promise  to  pay  over  mono}''  had 
and  received  by  the  defendant  to  the  plaintiff's  use  does  not  and 
cannot  arise.^  In  this  country,  however,  the  weight  of  authority 
is  strongly  the  other  way.  The  cases  generally  admit  an  elec- 
tion under  the  circumstances  described,  between  an  action  based 
upon  the  tort,  and  an  action  based  upon  the  implied  promise  to 
jDay  the  price  or  value  of  the  goods.  The  tort  is  waived,  and  the 
transaction  is  treated  as  a  sale,  and  not  as  an  instance  of  money 
had  and  received.  This  distinction  is  certainly  supported  by  the 
plainest  principles,  if  the  doctrine  of  implied  promises  and  elec- 
tion is  to  be  admitted  at  all.^     If  money  has  been  converted,  the 


1  McKnight  v.  Dunlop,  4  Barb.  36,  42  ; 
Hinds  V.  Tweddle,  7  How.  Pr.  278,  281  ; 
Harpeiiding  v.  Shoemaker,  37  Barb.  270, 
291;  Chambers  v.  Lewis,  2  Hilt.  591; 
Leach  v.  Leach,  2  N.  Y.  S.'C.  657  ;  Tryon 
V.  Baker,  7  Lans.  511,  514  ;  Roberts  v. 
Evans,  43  Cal.  380 :  Gordon  v.  Bruner, 
49  Mo.  570,  571  ;  Putnam  v.  Wise,  1  Hill, 
234,  240,  and  the  reporter's-  note  ;  Berly 
V.  Taylor,  5  Hill,  577,  584,  and  the  re- 
porter's note. 

'^  McKniglit  V.  Dunlop,  4  Barb.  36, 
42;  Henry  v.  Marvin,  3  E.  D.  Smith, 
71 ;  Tryon  v.  Baker,  7  Lans.  511,  514. 

i  Hinds  V.  Tweddle,  7  How.  Pr.  278, 
281 ;  Chambers  v.  Lewis,  2  Hilt.  591 ;  Put- 
nam V.  Wise,  1  Hill,  234,  240  (and  see  note 
of  the  reporter)  ;  Berly  v.  Taylor,  5  Hill, 
677, 584  (and  note  of  the  reporter) ;  Roberts 
V.  Evans,  43  Cal.  380;  Gordon  v.  Bruner, 
49  Mo.  570,  571.  In  the  last  case,  goods 
had  been  carried  away  and  converted  by 
the  defendant.  The  court,  by  Bliss  J., 
said  :  "  It  is  not  disputed,  that  when 
there  is  a  conversion  of  personal  prop- 
erty, and  that  property  has  been  sold  and 
converted  into  money,  the  owner  may 
ratify  the  sale  by  suing  the  wrong-doer 


as  for  money  had  and  received  to  his 
use  :  but  when  the  property  has  not 
been  sold,  but  still  remains  in  the  hands 
of  the  wrong-doer,  there  is  a  difference  of 
opinion  ;  and  there  have  been  conflicting 
decisions  whether  the  owner  may  waive 
the  tort,  and  sue  for  goods  sold  and  de- 
livered. In  Massachusetts,  in  Jones  v. 
Hoar,  5  Pick.  285,  to  which  there  is  a 
note  to  a  former  opinion  reviewing  the 
English  cases,  it  was  held  that  no  con- 
tract could  be  implied  unless  the  goods 
were  sold  and  converted  into  money ;  and 
the  same  doctrine  was  held  in  Pennsylva- 
nia, in  Willett  v.  Willett,  3  Watts,"  277. 
and  in  Morrison  v.  Rogers,  2  111.  317. 
But  such  has  not  been  the  uniform  ruling. 
In  Putnam  v.  Wise,  1  Hill,  240,  the  court 
holds  that,  "  according  to  the  well-known 
right  of  election  in  such  cases,  the  plain- 
tiff" might  have  brought  'assumpsit'  as 
•for  goods  sold  and  delivered  against 
those  who  had  tortiously  taken  their 
property."  To  this  the  reporter,  Mr. 
Hill,  adds  a  note,  reviewing  the  cases, 
and  disapproving  the  doctrine  of  Jones  v. 
Hoar.  (See  Hill  v.  Davis,  3  N.  H.  384; 
Stockett  V.  Watkins's  Administrator,   2 


620  CIVIL   REMEDIES. 

ric^ht  of  election  exists  under  the  operation  of  either  rule,  since 
the  actual  receipt  of  money  by  the  defendant  brings  the  case 
exactly  within  the  reason  and  operation  of  the  doctrine  as  first 
stated.^  The  same  choice  between  the  actions  may  sometimes  be 
possil)le  when  the  liability  is  connected  with  a  claim  to  land  or 
grows  out  of  its  use,  although  the  instances  are  much  fewer  than 
those  of  the  preceding  class.  Thus,  when  the  owner  agreed  to 
lease  certain  premises  to  the  plaintiff  for  a  term  of  years  com- 
mencing at  a  future  day  named,  but  before  that  day  actually 
leased  them  to  another  person  who  took  possession,  and  when 
the  time  arrived  the  plaintiff  demanded  possession,  tendered  the 
rent,  and  on  refusal  brought  an  action  for  damages,  it  was 
objected  on  the  trial  that  his  only  remedy  was  ejectment  against 
the  tenant  in  possession.  The  court  held,  that,  while  the  plain- 
tiff might  have  maintained  ejectment,  he  could  also  bring  an 
action  against  the  lessor,  which  could  be  either  upon  the  agree- 
ment express  or  implied,  or  in  tort  for  the  violation  of  the  duty 
arising  from  the  relation  of  lessor  and  lessee  between  the  par- 
ties.^ It  is  settled  in  Wisconsin,  after  a  careful  consideration  and 
an  exhaustive  analysis  and  comparison  of  the  conflicting  deci- 
sions, that  when  the  defendant  had  committed  a  wilful  trespass 
upon  the  plaintiff's  land  by  deliberately  turning  his  cattle  thereon, 
in  order  that  they  might  feed  upon  the  grass,  the  plaintiff  might 
waive  the  tort,  and  sue  upon  an  implied  contract  for  the  price  and 
value  of  the  pasturage.^ 


Gill  &  J.  326,  and  cases  cited.)  Quoting  such  letting,  and  demanded  judgment 
early  Missouri  decisions  to  the  same  effect,  for  the  amount  so  received,  the  court 
—  Floyd  V.  Wiley,  1  Mo.  430,  043  ;  John-  held  tliat  there  was  no  power  to  waive 
son  V.  Strader,  3  Mo.  359,  —  the  learned  the  tort,  and  sue  on  contract  for  money 
judge  adds :  "  It  may  be  treated,  then,  as  had  and  received;  that  the  doctrine  of 
the  doctrine  in  this  State,  that  one  wlio  election  did  not  extend  so  far  as  to  allow 
has  converted  to  his  own  use  the  personal  the  plaintitf  to  try,  under  the  form  of  an 
property  of  another,  when  sued  for  the  action  for  money  had  and  received,  a 
value  of  that  property  as  sold  to  him,  will  right  or  claim  to  real  estate,  or  to  its  pos- 
not  be  permitted  to  say  in  defence  that  he  session,  or  to  its  rents  and  profits.  Car- 
obtained  it  wrongfully."  penter  v.  Stilwell,  3  Abb.  Pr.  459.     This 

1  Tryon  i'.  Baker,  7  Lans.  511,  514.  was  a  Special  Term  decision,  and  does 

2  Trull  V.  Granger,  8  N.  Y.  115.     On  not,  therefore,  have  much  authority  as  a 
the  other  hand,  when  a  complaint  alleged  precedent. 

tiiat  the  plaintiff  was  the  owner  and  en-  3  Norden  v.  Jones,  33  Wise.  600,  G04, 

titled  to  the  possession  of  certain  premises,  605.     The  opinion  of  Dixon  C.  J.  is  a  full 

that  the  defendant  took  possession  there-  and  most  instructive  examination  of  the 

of  under  a  void  deed,  and  leased  them,  doctrine.  It  rejects  the  narrow  rule  which 

and  has  received  the  rent  arising  from  confines  an  election   to   the   single   case 


ELECTION   BETWEEN   ACTIONS. 


621 


§  570.  It  is  a  familiar  rule,  that  the  action  against  a  common 
carrier  for  a  loss  or  injury  of  goods  may  either  be  in  tort  for  the 
violation  of  his  general  duty,  or  on  the  contract  which  he  ex- 
pressly or  impliedly  enters  into.  The  owner  has  his  election 
which  of  these  remedies  he  will  pursue ;  but  his  choice  cannot 
alter  the  extent  of  the  carrier's  liability.^  Fraud  in  its  various 
phases  also  furnishes  many  occasions  and  opportunities  for  the 
exercise  of  an  election  between  actions.  One  of  the  most  com- 
mon is  the  case  of  a  sale  upon  a.  credit  procured  by  the  false  and 
fraudulent  representations  of  the  vendee  as  to  his  pecuniary 
responsibility.  UjDon  discovering  the  fraud,  even  before  the 
expiration  of  the  credit,  the  vendor  may  rescind  the  sale,  and 
immediately  bring  an  action  in  form  of  tort  either  to  recover  the 
goods  themselves,  or  damages  for  their  taking  and  conversion  ;  or 
he  may  waive  the  tort,  and  sue  at  once  on  contract  for  the  price.^ 
And  when  money  has  been  obtained  by  false  and  fraudulent 
representations,  or  by  fraudulent  practices  of  any  kind,  the 
plaintiff  has  the  option  to  sue  either  in  tort  for  the  deceit,  or  in 
contract  for  money  had  and  received  by  the  defendant  to  his 
use.^ 


where  tlie  wrong-doer  has  actually  re- 
ceived money,  and  accepts  the  broad 
principle  that  the  election  may  be  had 
whenever  a  promise  is  implied. 

1  Campbell  v.  Perkins,  8  N.  Y.  430, 
438  ;  Brown  v.  Treat,  1  Hill,  225  ;  People 
V.  Kendall,  25  Wend.  3U9  ;  Wallace  v. 
Morss,  5  Hill,  391  ;  Campbell  v.  Stakes, 
2  Wend.  137. 

2  Koth  V.  Palmer,  27  Barb.  652,  and 
cases  cited ;  Kayser  v.  Sichel,  34  Barb. 
84 ;  s.  c.  on  app.  sub  nom.  Wigand  v. 
Sickel,  3  Keyes,  120,  approving  Roth  v. 
Palmer. 

3  Byxbie  v.  Wood,  24  N.  Y.  607,  610 ; 
Union  Bank  v.  Mott,  27  N.  Y.  633,  636. 
In  the  first  of  these  cases,  objection  was 
taken  that  the  cause  of  action  was  for  a 
tort,  —  deceit.  The  court,  after  stating 
tlie  facts  as  found  on  the  trial,  which 
placed  the  recovery  upon  the  defendant's 
implied  contract  to  refund  money  which 
he  had  obtained  by  fraudulent  practices, 
proceed  as  follows  :  "  This  state  of  facts 
does  not  necessarily  require  an  action  to 
be  brought  for  the  tort.  Such  facts  al- 
ways  raise  in  law  the  implied  promise 


which  was  the  contract-cause  of  action  in 
indebitatus  assumpsit  for  money  had  and 
received.  Having  money  that  rightfully 
belongs  to  another  creates  a  debt;  and 
wherever  a  debt  exists  without  an  ex- 
press promise  to  pay,  the  law  implies  a 
promise,  and  the  action  always  sounds  in 
contract."  On  the  other  hand,  in  Union 
Bank  v.  Mott,  where  two  defendants  had, 
through  fraudulent  collusion  with  its  offi- 
cers, overdrawn  a  large  sum  of  money 
from  the  bank,  and  insisted  that  the  ac- 
tion brought  against  them  was  necessarily 
on  contract,  and  was  therefore  joint,  and 
could  not  be  revived  against  the  executors 
of  one  of  them  who  had  died,  the  court 
said,  per  S.  L.  Selden  J.  : "  The  plaintiff's 
counsel,  however,  insists  —  and,  I  think, 
correctly  — that  the  basis  of  the  action  is 
tort,  and  not  contract  express  or  implied  ; 
that  its  object  is  not  to  recover  for  money 
had  and  received  by  the  defendants  to 
plaintiff's  iise,  thus  waiving  the  tort,  but 
to  obtain  a  judgment  for  the  damages 
which  the  plaintiff  has  sustained  through 
the  fraudulent  conduct  of  the  defendants." 
The  liability  was  therefore  declared  to  be 


622  CIVIL   REMEDIES. 

§  571.  The  conflict  which  has  existed  to  a  certain  extent  among 
the  decisions  in  reference  to  the  right  of  election,  and  the  chasses 
of  tortious  acts  and  omissions  embraced  within  it,  can  only  be  put 
to  rest  by  determining  with  certainty  the  occasions  and  circum- 
stances in  which  a  promise  will  l)e  implied  by  the  law.  It  is 
very  clear  that  whenever  the  promise  will  be  implied,  if  tlie  acts 
or  omissions  from  which  it  is  inferred  are  at  the  same  time 
tortious,  the  election  to  sue  for  the  tort  or  for  a  breach  of  the 
contract  must  necessarily  exist,  or  else  it  must  be  denied  on  some 
mere  arbitrary  and  insufficient  ground.  The  whole  discussion  is 
thus  reduced  to  the  single  question,  When  is  a  promise  implied 
by  the  law?  The  comprehensive  principle  which  furnishes  a 
definite  answer  to  this  inquiry,  applicable  to  all  circumstances 
and  relations,  has  been  well  stated  by  the  courts  in  the  following 
terms :  "  When  a  promise  is  implied,  it  is  because  the  party 
intended  it  should  be,  or  because  natural  justice  plain!//  requires 
it  in  consideration  of  some  benefit  received.''^  ^  It  was  also  said  by 
a  very  able  English  judge,  that  "  no  party  is  bound  to  sue  in 
tort,  when  by  converting  the  action  into  an  action  on  contract  he 
does  not  prejudice  the  defendant;  and,  generally  speaking,  it  is 
more  favorable  to  the  defendant  that  he'  should  be  sued  in  con- 


several.     It  will  be  noticed  that  these  two  thority,  discharged  said  judgment,  where- 

cases    were   alike   in    all   their   essential  by  the  lien  of  the  judgment  was  lost,  and 

facts,  and  that,  in  one  of  them,  the  tort  the  debtor  was  able  and  did  convey  the 

■was  held  to  have  been  waived,  and  in  the  said  land  to  bona  fide  purcliasers  ;    that 

other  not  to  have  been  waived ;  and  tliis  the  judgment  debtor  is   now   insolvent; 

distinction  was,  in  fact,  made,  not  upon  wherefore  tlie  plaintiff  has  lost  saidjudg- 

any  difference  in  the  allegations,  but  be-  niont,  which  otherwise  might  and  would 

cause  it  subserved  the  ends  of  justice,  and  have  been  collected,  and   has  sustained 

defeated  an  objection  of  mere  form.     A  damage  to  the  amount  of  83,500.     The 

peculiar  instance  of  fraud  was  presented  second  cause  of  action  was  for  money  had 

in  the  recent  case  of  Booth  v.  Farmers'  and  received.     In  answer  to  a  demurrer 

and   Mech.  Bank,  1   N.  Y.  S.  C.  45,  49.  on  the  ground  that  causes  of  action  had 

The    complaint    contained   two   distinct  been     improperly    united,    tiie     plaintiff 

causes  of  action.     The  first  alleged,  that,  claimed  tliat  he  had  waived  tlie  tort  in 

in  1860,  the  defendant  recovered  a  judg-  the  first  count,  and  liad  sued   on  an  im- 

ment  for  §o,500  against  a  certain  person  plied  contract.     The  court,  while  conced- 

named,    wliich   was   properly   docketed  ;  ing  that  the  tort  might  be  waived,  and 

tliat,  in  1S(J1,  tlie  defendant,  for  a  valua-  tlie  right  of  action  be  placed  upon  the  im- 

able  consitleration,  assigned  said  judgment  plied  promise,  held  that  there  had,  in  fact, 

to  tiie  plaintiff;  that,  after  the  docketing  been  no  such  waiver,  but  that  the  first 

of  said  judgment,  tlie  debtor  owned  land  count  was  in   tort.     See   the    opinion  of 

in   tlie    county    where   it   was   docketed  Muliin  J.,  given  in  full,  srqira,  §  539. 

more  than  sufficient  in  value  to  have  sat-  *   Webster  v.   Drinkwater,   5    Greenl. 

isfied  it,  and  upon  wliicli  it  was  a  lien;  322;  also  per  Beardsley  J.  in  Osborn  v. 

that,  in  1864,  the  defendant,  without  au-  Bell,  6  Denio,  370. 


ELECTION   BETWEEN    ACTIONS.  623 

tract."  ^  If  these  quotations  are  correct  statements  of  the  general 
principle  it  is  plain  that  the  rule  maintained  by  some  decisions, 
which  would  restrict  the  right  of  election  to  those  cases  in  which 
the  wrong-doer  has  actually  received  money  equitably  belonging 
to  the  plaintiff,  is  erroneous.^ 

§  572.  The  foregoing  examples  sufficiently  illustrate  the  scope 
and  extent  of  the  doctrine  under  consideration,  and  the  class  of 
liabilities  to  which  it  is  applied.  It  remains  to  inquire  how, 
under  the  new  procedure,  the  plaintiff  shall  indicate  in  his  plead- 
ing the  fact  that  he  has  actually  made  his  election,  and  has 
brought  his  action  in  tort  or  on  contract,  as  the  case  raaj^  be. 
Under  the  old  system,  no  such  question  could  arise.  The  election 
was  disclosed  by  the  form  of  the  action  itself.  If  the  liability 
was  to  be  treated  as  arising  from  contract,  assumpsit  was  of 
course  the  action  selected ;  if  from  tort,  trover  or  case  or  re- 
plevin, or  sometimes  trespass,  were  the  proper  instruments. 
Since  these  forms  have  been  abolished,  and  all  the  technical 
phrases  which  distinguished  one  proceeding  from  another  are 
abandoned,  it  is  only  by  the  substantial  nature  and  contents 
of  the  allegations  themselves  —  the  facts  which  they  aver —  that 
the  election  can,  if  at  all,  be  now  indicated.  In  other  words,  as 
the  pleader  can  express  his  design  by  means  of  no  arbitrary  sym- 
bols in  the  complaint  or  petition,  he  must  show  that  he  has 
chosen  to  sue  either  in  tort  or  on  contract  by  the  very  substance  of 
the  averments  which  constitute  the  cause  of  action.  In  a  recent 
case  the  New  York  Supreme  Court  proposed  a  certain  test,  and 
declared  that  when  the  plaintiff  claims  to  have  waived  the  tort, 
alid  to  have  sued  upon  an  implied  contract,  the  only  possible 
mode  of  showing  this  election  is  by  expressly  alleging  a  promise 
to  have  been  made  by  the  defendant ;  that  in  no  other  manner 
can  the  design  of  making  the  action  one  ex  contracUi,  and  of- 
distinguishing  it  from  one  ex  delicto,  be  disclosed  on  the  face  of 

1  Young  V.  Marsliall,  8  Bing.  43,  per  also  the  following  cases :  Centre  Turn- 
Tindal  C.  J.  pike  Co.  v.  Smith,  12  Vt.  217  ;  Cummings 

2  It  was  said  by  Hogeboom  J.,  while  v.  Vorce,  3  Hill,  282;  Osborn  v.  Bell,  5 
commenting  upon  this  narrow  rule  in  Denio,  370  ;  Camp  v.  Pulver,  5  Barb.  Ul  ; 
Roth  V.  Palmer,  27  Barb.  652:  "Our  Butts  v.  Collins,  13  Wend.  189,  154; 
courts  recognize  no  such  distinction.  Lightly  v.  Clouston,  1  Taunt.  113;  Hill 
They  allow  the  election  in  all  cases  v.  Perrott,  3  Taunt.  274;  Young  v.  Mar- 
where  the  plaintiff'  would  have  been  al-  shall,  8  Bing.  43. 

lowed  to  pursue  his  remedy  in  tort."    See 


624  CIVIL   REMEDIES. 

the  pleading.^  It  has  already  been  shown  that  this  conclusion  is 
directly  oi^posed  to  the  fundamental  principles  of  the  reformed 
pleading,  and  that  it  is  a  return  to  the  most  technical  and  purely 
fictitious  dogmas  and  distinctions  of  the  common-law  system. 
It  is  also  opposed  to  decisions  and  judicial  dicta  in  relation 
to  this  very  question  which  declare  that  such  a  mode  of  stating 
the  cause  of  action  is  inadmissible,  and  that  the  facts  alone 
which  constitute  it  must  be  averred  as  they  actually  took  place.^ 
§  573.  Whenever  the  contract  relied  upon  is  express,  there  can 
be  no  difficulty  in  showing  the  election  upon  the  face  of  the 
pleading.  If  the  plaintiff  chooses  to  bring  an  action  ex  contractu^ 
his  complaint  or  petition  will  simply  state  the  terms  of  the  agree- 
ment, and  the  facts  which  constitute  the  breach  thereof.  If  he 
chooses  to  bring  an  action  ex  delicto  for  a  violation  by  the  defend- 
ant of  his  general  duty,  his  complaint  or  petition  will  set  out  the 
facts  showing  his  own  primary  right  and  the  defendant's  duty, 
disregarding  the  contract,  and  will  then  allege  the  tortious  acts  or 
omissions  by  which  that  right  and  duty  were  violated.  Although 
the  same  actual  transaction  between  the  parties  would  be  stated  in 
either  case,  the  form  and  manner  of  the  statement  would  be  entirely 
and  plainly  different.  An  ordinary  claim  against  a  common  car- 
rier for  the  loss  of  goods  furnishes  a  familiar  example  of  these 
two  modes.  But  when  the  contract  relied  upon  is  implied,  and 
is  simply  the  fictitious  promise  wdiich  the  law  infers  from  the 
tortious  acts  themselves,  it  may  be  doubted  whether  it  is  pos- 
sible, in  accordance  with  the  true  principles  of  the  reformed 

1  Booth  V.  Farmers'  and  Mech.  Bank,  phrase  malces  a  particular  form  of  action,  so 
1  N.  Y.  S.  C.  45,  49.  See  tlie  complaint  that  a  party,  by  its  use,  may  shut  himself 
given  supra  in  note  to  §  570,  and  the  out  from  the  remedy  which  his  facta 
opinion  of  Mullin  J.,  supra,  §  539.  would   give   him."     As   the   court  were 

2  Byxbie  v.  Wood,  24  N.  Y.  607,  610 ;  here  discussing  the  doctrine  of  election, 
Chambers  i'.  Lewis,  2  Hilt.  591.  The  and  as  they  held  that  the  complaint 
facts  of  Byxbie  v.  Wood  were  stated,  and  stated  a  cause  of  action  on  contract,  and 
an  extract  from  the  opinion  was  given  in  not  one  in  tort,  altlwiKjh  no  promise  ivas  al- 
the  note  to  §  270.,  Immediately  following  /«/«/,  this  language,  and  the  decision  upon 
the  language  tiiere  quoted,  the  learned  it,  are  entirely  inconsistent  with  the  posi- 
judge  proceeds  as  follows  :  "  Under  the  tion  taken,  and  the  test  suggested  by  the 
code,  this  implied  promise  is  treated  as  a  Supreme  Court  in  Booth  v.  P'armcrs'  and 
fiction,  and  the  facts  out  of  which  the  prior  Mech.  Bank.  In  Chambers  v.  Lewis,  the 
law  raised  the  promise  are  to  be  staled  with-  court  simply  said 'that  whether  a  waiver 
out  am/  desif/natfon  of  a  form  of  action  ;  and  has  been  made  must  now  be  shown  by 
the  law  gives  such  judgment  as,  being  the  facts  averred  in  the  complaint  and  by 
asked  for,  is  appropriate  to  the  facts.    Of  the  prayer. 

course  we  caimot  now  say  that  a  particular 


FORM    OF   THE    COMPLAINT    OR   PETITION.  625 

pleading,  to  frame  a  complaint  or  petition  in  all  cases  which  shall 
show  on  its  face  that  the  jolaintiff  has  elected  to  bring  his  action, 
either  in  tort  or  on  contract.  In  one  class  of  liabilities  it  is 
certainly  possible  to  do  so  ;  namely,  in  those  which  result  from  the 
defendant's  fraudulent  representations  and  deceits.  The  allega- 
tion, of  -a  scienter  is  indispensable  in  the  action  ex  delicto  based 
upon  such  a  liability,  and  distinguishes  it  in  a  marked  manner 
from  the  correlative  action  based  upon  the  implied  promise.  But 
when  the  liability  results  from  the  wrongful  taking  or  conver- 
sion of  chattels,  from  trespasses,  negligences,  or  other  similar 
kinds  of  wrongs,  the  very  facts  which  are  alleged  in  the  action 
of  tort  are  the  facts  from  which  the  promise  is  inferred  ;  and, 
according  to  the  true  theory  of  pleading,  these  facts  must  also 
be  stated  in  the  action  ex  contractu^  without  any  legal  inferences 
or  conclusions.  It  conclusively  follows,  that,  in  this  general 
class  of  liabilities,  as  the  facts  which  constitute  the  cause  of 
action  are  the  same  in  each,  the  averments  of  the  complaint  or 
petition  must  be  the  same  in  each  kind  of  action,  if  the  essential 
principles  of  the  reformed  system  are  complied  with,  so  that  it  is 
impossible  to  indicate  upon  the  face  of  the  pleading  alone  the 
election  which  the  .plaintiff  has  made.  The  form  of  summons 
adopted  would  therefore  seem  to  be  the  only  certain  test,  in  this 
class  of  cases,  by  which  the  nature  of  the  action  can  be  deter- 
iuined,  and  the  fact  of  an  election  can  be  made  known  to  the 
adverse  party.  The  only  other  alternative  is,  to  insert  in  the 
complaint  certain  legal  conclusions  or  descriptive  phrases  which, 
in  reference  to  the  statement  of  the  cause  of  action,  are  purely 
immaterial  and  redundant. 

SECTION    FOURTH. 

THE   FORM   OF   THE   COMPLAINT   OR  PETITION. 

§  574.  Having  thus  discussed  and  determined  the  fundamental 
principles  and  general  doctrines  of  the  reformed  pleading,  which 
apply  to  all  causes  of  action,  and  to  all  defences  by  way  of  con- 
fession and  avoidance  or  of  affirmative  relief,  I  shall  now  briefly 
consider  the  rules  which  pertain  to  the  form  of  the  complaint  or 
petition,  and  which  regulate  the  manner  of  stating  and  arranging 
its   allegations.     These   rules  are  few   and   simple ;    and    their 

40 


626  CIVIL   REMEDIES. 

object  is  to  render  the  issues  single  and  certain,  and  to  present 
the  cause  of  action  for  a  decision  upon  its  merits,  and  not  upon 
any  technical,  incidental,  or  collateral  questions.  In  one  impor- 
tant feature  the  new  system  stands  in  marked  contrast  with  the 
old,  —  the  entire  absence  of  all  special  phrases  or  formulas  by 
which  the  kinds  of  actions  are  distinguished,  or  by  which  the 
pleadings  or  any  parts  of  them  are  characterized. 

§  575.  When  a  complaint  or  petition  contains  two  or  more 
causes  of  action,  all  the  codes  require  that  they  shall  be  dis- 
tinctly and  separately  stated  and  numbered ;  and  the  method  by 
which  a  violation  of  this  requirement  is  to  be  corrected  has 
already  been  explained.^  It  is  a  settled  rule,  that,  if  the  pleading 
is  of  this  kind,  each  separate  division  or  count  must  be  complete 
by  itself,  and  must  contain  all  the  averments  necessary  to  a 
perfect  cause  of  action.  Defects  and  omissions  in  one  cannot 
be  supplied  by  the  allegations  found  in  another ;  nor  can  the 
pleader,  by  merely  referring  to  material  facts  properly  set  forth  in 
a  former  count,  incorporate  them  into  and  make  them  part  of  a 
subsequent  one.  In  other  words,  all  the  issuable  or  material 
facts  constituting  the  ground  for  a  recovery  must  be  stated  in 
each  cause  of  action,  even  though  some  repetition  might  thereby 
become  necessary.  This  requirement,  however,  applies  only  to  the 
material  and  issuable  facts  which  constitute  the  cause  of  action. 
Matter  which  is  simply  introductory  or  by  way  of  inducement,- 
and  not  part  of  the  gravamen,  after  having  been  once  set  out  at 
the  commencement  of  the  pleading,  need  not  be  repeated  in 
each  paragraph,  but  should  be  j-eferred  to  merely.  And  this 
introductory  matter  includes  all  descriptions  of  the  character, 
capacity,  or  particular  right  in  respect  of  which  the  plaintiffs  and 
defendants  are  made  parties  to  the  action,  as  executors,  trustees, 
public  officers,  and  the  like.  These  and  similar  statements  prop- 
erly form  the  commencement  or  introduction  of  the  complaint, 
distinct  from  the  several  causes  of  action,  and  equally  applicable 
to  all  of  them.  Whenever,  therefore,  a  cause  of  action  is 
attacked  b}^  a  demurrer  directed  either  against  it  alone  or  against 
the  entire  pleading,  it  must  stand  or  fall  by  its  own  averments, 
and  cannot  be  helped  out  by  any  facts,  however  sufficient  in 
themselves  alleged  in  another  paragraph  or  count.^     But  the  par- 

1  See  supra,  §§  447,  450.  555;  Durkee  v.  City  Bank,  13  Wise.  216, 

2  Abendrotli    v.   Boardley,   27   Wise.    222 ;    Curtis   v.   Moore,   15   Wise     134 ; 


FORM    OF   THE    COMPLAINT   OR   PETITION.  627 

ticular  sum  of  damages  claimed  in  each  cause  of  action  need  not 
necessarily  be  given  at  its  close  ;  it  is  sufficient  if  the  aggregate 
amount  is  alleged  and  demanded  at  the  end  of  the  complaint.^ 

§  576.  Since  the  reformed  pleading  requires  the  facts  to  be 
averred  as  they  actually  took  place,  it  does  not  in  general  permit 
a  single  cause  of  action  to  be  set  forth  in  two  or  more  different 
forms  or  counts,  as  was  the  familiar  practice  at  the  common  law. 
The  rule  is  undoubtedly  settled,  that,  under  all  ordinary  circum- 
stances, the  plaintiff  who  has  but  one  cause  of  action  will  not  be 
suffered  to  spread  it  upon  the  record  in  differing  shapes  and  modes, 
as  though  he  possessed  two  or  more  distinct  demands  ;  and  when 
he  does  so  without  special  and  sufficient  reason,  he  will  be  com- 
pelled, either  by  a  motion  before  the  trial  or  by  an  application 
and  direction  at  the  trial,  to  select  one  of  these  counts,  and  to 
abandon  the  others.  It  is  certain  that  different  causes  of  action 
in  the  complaint  or  petition  must,  as  a  general  rule,  imply  as 
many  distinct  causes  of  action  actually  held  or  claimed  to  be 
held  by  the  plaintiff.^  It  cannot  be  said,  however,  that  this  rule 
is  absolutely  inflexible.  As  it  is  one  of  convenience  simply,  it 
must  sometimes  yield  to  the  demands  of  justice  and  equity. 
Under  peculiar  circumstances,  when  the  exact  legal  nature  of  the 
plaintiff's  right  and  of  the  defendant's  liability  depends  upon  facts 
in  the  sole  possession  of  the  defendant,  and  which  will  not  be 
developed  until  the  trial,  the  plaintiff  may  set  forth  the  same 
single  cause  of  action  in  varied  counts  and  with  differing  aver- 
ments, so  as  to  meet  the  possible  j)roofs  which  will  for  the  first 
time  fully  appear  on  the  trial.  This  proj)Osition  is  plainly  just 
and  right,  and  is  sustained  by  the  authority  of  able  courts.^ 

Sabin  v.  Austin,  19  Wise.  421,  423  ;  Cat-  Churchill  v.  Churchill,  9  How.  Pr.  552 ; 

lin  V.  Pedrick,  17  Wise.  88,  91  ;  Barlow  Ford  v.  Mattice,  14  How,  Pr.  91 ;  Dun- 

V.  Burns,  40  Cal.  351,  353;  Potter  v.  Ear-  ning  v.  Thomas,  11  How.  Pr.  281. 
nest,  45  Ind.  416  ;  Mason  v.  Weston,  29  «  Whitney  v.  Chicago,  &c.  N.  W.  E.  P., 

Ind.  561;    Day  v.  Vallette,  25  Ind.  42;  27  Wise.  327,340-342.     The  plaintiff  had 

Leabo  v.  Detrick,  18  Ind.  414 ;  National  shipped    wool   on    defendant's    road    for 

Bank  i.-.  Green,  33  Iowa,  140   (answer);  Cliicago,  and  it  was  never  delivered.     He 

Silvers  v.  Junction  R.  P.,  43  Ind.  435,  446  did  not  know  whether  it  had  been  lost  in 

(reply).  the  transit,  or  had  been  burned  at  a  fire 

1  Spears  v.  Ward,  48  Ind.  541.  which  had  consumed  defendant's  ware- 

^  Sturges  V.  Burton,  8  Ohio  St.  215  ;  house  in  Chicago.     He  therefore  set  forth 

Muzzy  V.  Ledlie,  23  Wise.  445 ;  Lackey  in  his  complaint  two  distinct  causes  of 

V.  Vanderbilt,  10  How.  Pr.  155;  Nash  v.  action — (1)   against  the  defendant  as  a 

McCauley,  9   Abb.   Pr.  159;  Sipperly  v.  common  carrier,  and  (2)  against  defend- 

Troy  and  B.  R.  R.,  9  How.  Pr.  83;  Hill-  ant  as  a  warehouse-man  —  for  the  negli- 

man    v.   Hillman,    14    How.    Pr.     456 ;  gent  loss  of  the  goods.     This  manner  of 


628  CIVIL   REMEDIES. 

§  577.  Wlien  a  complaint  or  petition  contains  two  or  more  dis- 
tinct causes  of  action,  a  demurrer  to  it  as  a  whole,  or  to  all  or  some 
of  the  causes  of  action  jointly,  must  fail  and  be  overruled  if  any 
one  of  the  separate  causes  of  action  included  in  the  demurrer  is 
good :  and  the  same  rule  applies  to  separate  defences  in  an 
answer.^  The  defendant  should  never  demur  to  an  entire  com- 
plaint or  petition  consisting  of  several  distinct  causes  of  action, 
nor  to  two  or  more  causes  of  action  jointly,  unless  he  is  certain 
that  they  are  all  insufficient;  and,  under  all  circumstances,  it  is 
the  better  and  safer  practice  to  demur  in  express  terms  to  each 
separately,  for  each  will  then  stand  or  fall  upon  its  own  merits.^ 
The  same  rule  also  applies  to  a  demurrer  for  want  of  sufficient 
facts  by  two  or  more  defendants  jointly ;  it  will  be  overruled  as 
to  all  who  unite  in  it  if  the  comj)laint  or  petition  states  a  good 
cause  of  action  against  even  one  of  them/^  A  different  rule, 
however,  prevails  in  some  States."^ 

§  578.  It  is  expressly,  provided  in  all  the  codes,  that  material 
allegations  of  the  comj)laint  or  petition  not  controverted  by  the 
answer  are  admitted,  and  they  need  not  be  proved ;  the  same  is 
of  course  true  of  averments  expressly  admitted.  A  denial  of 
the  legal  conclusion,  such  as  the  indebtedness,  while  the  answer  is 
silent  with  respect  to  the  issuable  facts  from  which  the  conclu- 
sion follows,  is  a  mere  nullity,  and  raises  no  issue.^     What  aver- 

pleading  was  lield  proper  under  tlie  cir-  demurrer  was  lield  to  he  joint,  and  not 
cumstances,  and  the  plaintiff  couhl  not  he  several ;  and  the  rule  of  the  text  was  en- 
compelled  to  elect  on  the  trial.  Tlie  sub-  forced.  The  opinion  carefully  discusses 
ject  is  exhaustively  discussed  by  Dixon  the  question,  what  language  makes  a  de- 
C.  J.,  pp.  340-342.  See  also  Smith  v.  murrer  or  an  answer  joint,  and  what  sev- 
Douglass,  15  Abb.  Pr.  266 ;  Jones  v.  eral,  citing  on  this  topic  Lane  v.  State,  7 
Palmer,  1  Abb.  Pr.  442.  Ind.  426  ;  Earner  v.  Morehead,  22  Ind. 
1  Curtis  V.  Moore,  15  Wise.  134 ;  Jef-  354 ;  Jewett  v.  Honey  Creek  Draining 
fersonville,  &c.  R.  R.  v.  Vancant,  40  Ind.  Co.,  39  Ind.  245;  Parker  v.  Thomas,  19 
233  ;  Heavenridge  v.  Mondy,  34  Ind.  28  ;  Ind.  213  ;  Faukboner  v.  Fankboner,  20 
Hale  V.  Omaha  Nat.  Bank,  49  N.  Y.  626,  Ind.  62;  Aiken  v.  Bruen,  21  Ind.  137; 
630;  Ward  v.  Guyer,  3  N.  Y.  S.  C.  58;  Hume  v.  Dessar,  29  Ind.  112. 
Silvers  v.  Junction  R.  R.,  43  Ind.  435, 442-  2  Durkee  v.  City  Bank,  13  Wise.  216, 
445.     In  tlie  last  case  tlie  question  arose  222. 

on  a  reply  which  contained  several  para-  ■*  McGonigal   v.  Colter,  32  Wise.  614  ; 

graphs  or  defences.     The  defendant  de-  Webster  v.  Tibbits,  19  Wise.  438 ;  Shore 

murred  as  follows  :  "Now  comes  the  de-  v.  Taylor,  46  Ind.  345;  Owen  v.  Cooper, 

fendant,  and  demurs  to  the  second,  third,  46  Ind.  -524. 

and  fourth  paragraphs  of  the  jjlaintiff's  *  Wood '?.  Olney,  7  Nev.  109.  The  de- 
reply,  upon  the  following  grounds  :  First,  murrer  was  sustained  as  to  some,  and 
said  second  paragraph  does  not  state  facts  overruled  as  to  the  others, 
sufficient,  &c.  ;  second,  said  third  para-  ^  Skinuer  v.  Clute,  9  Nev.  342;  Jen- 
graph  does  not  state  facts,  &c. ;  third,  said  kins  v.  N.  C.  Ore  Dressing  Co.,  65  N.  C. 
fourth  paragraph   does   not,"  &c.      This  663. 


FORM    OP   THE   COMPLAINT   OR   PETITION.  629 

ments  are  material,  and  are  thus  admitted  unless  controverted,  is 
a  question  of  la\y  to  be  decided  by  the  court,  and  not  by  the 
jury.^  The  result  just  mentioned  does  not  arise  from  a  failure 
to  deny  immaterial  allegations  ;  such  statements  are  not  issuable, 
and  their  truth  is  not  conceded  for  the  purposes  of  the  trial  by 
the  defendant's  neglect  to  controvert  them.  In  this  class  are 
included  all  species  of  immaterial  and  non-issuable  matter,  such 
as  details  of  evidence,  conclusions  of  law,  and  averments  of  time, 
place,  value,  amount,  and  the  like,  in  all  ordinary  circumstances.^ 
An  important  question  presents  itself  in  this  connection  as  to  the 
effect  of  a  qualified  admission  contained  in  the  defendant's 
answer,  and  the  decisions  in  respect  to  it  are  somewhat  conflict- 
ing. The  rule  is  settled  by  one  group  of  cases,  that  when  the 
answer  expressly  admits  certain  material  averments  of  the  com- 
plaint or  petition,  but  at  the  same  time  accompanies  this  conces- 
sion with  the  statement  of  affirmative  matter  in  explanation  and 
qualification  by  the  way  of  defence,  the  plaintiff  may  avail  him- 
self of  the  admissions  without  the  qualifications  ;  he  is  not  bound 
to  take  the  defendant's  entire  statement ;  he  is  freed  from  the 
necessity  of  proving  his  own  averments  that  are  admitted,  while 
the  defendant  must  prove  those  which  he  sets  up.^  Other  cases 
seem  to  lay  down  a  different  rule,  denying  to  the  plaintiff  the 
full  benefit  of  the  admission,  and  requiring  him  to  accept  it,  if  at 
all,    with  the   defendant's  qualifying  matter."^     When  different 

^  Becker  v.  Crow,  7  Bush,  198.  urged,  that,  if  the  answer  was  taken  as  an 

2  Doyle  V.  FrankUn,  48  Cal.  537,  539  ;  admission  at  all  in  the  plaintiff's  favor, 
Gates  V.  Salmon,  46  Cal.  361,  379  (evi-  the  whole  of  it  should  be  taken.  The 
dence) ;  Chicago,  &c.  R.  R.  v.  North  court,  by  Lyon  J.,  said:  "In  several 
West.  U.  P.  Co.,  38  Iowa,  377,  382  cases  this  court  has  taken  a  different 
(value  of  goods)  ;  People  v.  Commission-  view  of  the  law,  and  has  held,  that,  if  a 
ers,  54  N.  Y.  276,  279  (conclusion  of  law),  fact  be  expressly  admitted  in  any  part  of 
See  also  Sands  v.  St.  John,  36  Barb.  628  ;  the  answer,  such  fact  is  to  be  taken  as 
23  How.  Pr.  140;  Fry  v.  Bennett,  5  true  against  the  defendant,  and  the  plain- 
Sandf  54 ;  Newman  v.  Otto,  4  Sandf.  tiff  is  relieved  from  the  necessity  of 
668 ;  Oechs  v.  Cook,  3  Duer,  161  ;  Har-  proving  it,  and  this  though  it  may  be 
low  V.  Hamilton,  6  How.  Pr.  475 ;  Con-  controverted  in  some  other  part  of  the 
noss  V.  Meir,  2  E.  D.  Smith,  314  ;  Mayor,  answer.  The  principle  must  necessarily 
&c.  V.  Cunliff,  2  N.  Y.  165,  171.  be  the  same  when  the  fact  is  stated  by 

3  Dickson  v.  Cole,  34  Wise.  621,  626,  way  of  confession  and  avoidance,  as  in 
627.  The  answer  admitted  the  agreement  this  cas'e."  The  following  cases  were 
set  forth  in  the  complaint,  but  set  up  in  cited  as  sustaining  this  view  :  Sexton  v. 
connection  therewith  a  further  agreement  Rhames,  13  Wise.  99  ;  Hartwell  v.  Page, 
by  way  of  avoidance.  On  the  trial,  the  14  Wise.  49;  Orton  v.  Noonan,  19  Wise, 
court  held  the  cause  of  action  to  be  ad-  350 ;  Farrell  v.  Hennesy,  21  Wise.  632. 
mitted,  and  the  plaintiff  was  not  called  *  Troy  and  Rut.  R.  R.  v.  Kerr,  17 
upon  for    any    proofs.     The    defendant  Barb.  581.     As  to   the   effect  of  admis- 


630  CIVIL   REMEDIES. 

defendants  have  put  in  separate  answers,  an  admission  by  one 
cannot  be  used  against  the  others :  ^  and  the  same  doctrine 
extends  to  separate  defences  of  one  party  in  a  single  answer; 
the  admissions  in  a  defence  of  confession  and  avoidance  do  not 
overcome  the  effect  of  a  denial  contained  in  another.^ 

§  579.  A  defective  complaint  or  petition  may  be  supplemented, 
and  substantial  issues  may  thus  be  presented  by  the  answer 
itself.  Wlien  the  plaintiff  has  failed  to  state  material  facts,  so 
that  no  cause  of  action  is  set  forth,  but  these  very  facts  are  sup- 
plied by  the  averments  of  the  answer,  the  omission  is  immaterial, 
and  the  defect  is  cured.  This  rule  should  properly  be  confined 
to  the  case  where  the  answer  affirmatively  alleges  the  very  fact 
that  is  missing  from  the  complaint ;  but  it  has  in  some  instances 
been  enforced,  although  the  answer  simply  contained  a  denial  of 
the  necessary  fact  which  should  have  been  averred  by  the  plain- 
tiff.^ A  statement  in  the  reply,  however,  of  a  fact  which  ought 
to  have  been  alleged  in  the  complaint  or  petition,  is  not  sufficient, 
and  does  not  cure  the  defect.* 

§  580.  The  prayer  for  relief  is  generally  regarded  as  forming  no 
part  of  the  cause  of  action,  and  as  having  no  effect  upon  it,  and 
as  furnishing  no  test  or  criterion  by  which  its  nature  may  be 
determined.^  This  prevailing  view  was  well  expressed  by  a 
recent  decision  of  the  New  York  Court  of  Appeals  in  language 
which  I  quote  :  "  The  relief  demanded  by  no  means  characterizes 
the  action,  or  limits  the  plaintiff  in  respect  to  the  remedy  which 
he  may  have.  If  there  be  no  answer,  the  relief  granted  cannot 
exceed  that  which  the  plaintiff  shall  have  demanded  in  his  com- 

sions,  see  also  Simmons  v.  Law,  8  Bosw.  answer) ;  but  see  Scofield  v.  Wliitelegee, 

213  ;  3  Keyes,  217;  Paige  v.  Willett,  88  49  N.  Y.  259,  261,  which  expressly  holds 

N.  Y.  31 ;  Tell  v.  Beyer,  38  N.   Y.  161  ;  that  a  denial  merely  in  the  answer  is  not 

Eobbins  v.  Codman,  4  E.  D.  Smith,  325.  sufficient ;     Shartle    v.   Minneapolis,    17 

1  Swift    V.    Kingsley,    24   Barb.    541 ;  Minn.  308,  312. 

Troy  and  Rut.  R.  R.  v.  Kerr,  17  Barb.  *  Webb  v.  Bidwell,  15  Minn.  479,  485. 

581,  599.  5  Goodall  v.  Mopley,  45  Ind.  355,  359  ; 

2  Vassear  u.  Livingston,  13  N.  Y.  2-56 ;  Lowry  u.  Dutton,  28  Ind.  473;  Bennett 
4  Duer,  285;  Ayres  v.  Covill,  18  Barb.  v.  Preston,  17  Ind.  291  ;  Cincinnati,  &c. 
264;  9  How.  Pr.  573.  See  this  topic  R.  R.  f.  Washburn,  25  Ind.  259  ;  Hale  v. 
treated  at  large  infra  in  ch.  4,  sect.  4.  Omaha  Nat.   Bank,  49  N.   Y.   626,   631. 

3  Dayton  Ins.  Co.  v.  Kelly,  24  Ohio  This  doctrine  cannot,  of  course,  be  true 
St.  345,  357 ;  Miller  r.  White,  6  N.  Y.  in  tlie  one  or  two  States  whose  codes 
S.  C.  255;  Garrett  v.  Trotter,  65  N.  C.  provide  for  a  demurrer  when  tiie  facts 
430,  432 ;  Bate  v.  Graham,  11  N.  Y.  237  ;  alleged  show  that  the  plaintiff  is  not  en- 
Louisviile,  &c.  Canal  Co.  v.  Murphy,  9  titled  lo  the  relief  demanded  in  his  petition  or 
Bush,  522,  529   (a  simple  denial  in   the  complaint. 


FORM    OF   THE    COMPLAINT    OR    PETITION.  631 

plaint.  But  the  fact,  that  after  the  allegation  of  the  facts  relied 
upon  the  plaintiff  has  demanded  judgment  for  a  sum  of  money  by 
way  of  damages,  does  not  preclude  the  recovery  of  the  same 
amount  upon  the  same  state  of  facts  by  way  of  equitable  relief. 
The  relief  in  the  two  cases  would  be  precisely  the  same  ;  the 
difference  would  be  formal  and  technical.  If  every  fact  neces- 
sary to  the  action  is  stated,  the  plaintiff  may  even,  when  no 
answer  is  put  in,  have  any  relief  to  which  the  facts  entitle  him 
consistent  with  that  demanded  in  the  complaint."  ^  Although  this 
theory  has  been  accepted  by  most  of  the  courts,  and  is  approved 
in  numberless  cases,  at  least  one  tribunal  of  high  character  has  sug- 
gested that  the  prayer  for  relief  may  be  properly  appealed  to  as  the 
test  by  which  the  nature  of  the  action  can  be  determined  in  all 
cases  where  the  pleader  has,  by  his  mode  of  alleging  the  facts,  left 
his  intention  in  doubt,^  I  have  thus  discussed  and  stated  those 
fundamental  principles  and  general  doctrines  of  the  reformed 
pleading  which  are  common  to  all  causes  of  action.  The  more 
special  rules  which  prescribe  the  manner  and  form  of  averring 
particular  facts,  and  which  determine  the  mode  of  alleging  the 
various  causes  of  action  considered  separately  and  individually, 
must  be  omitted  from  the  present  volume.  They  will  find  their 
appropriate  place  in  the  second  part  of  the  work,  which  will  treat 
of  the  different  remedies  themselves  that  may  be  obtained  by 
means  of  the  civil  action. 

1  Bradley  ('.  Aldrich,  40  N.Y.  504  ;  Hale  or  more   actions  must  be  the  relief  de- 

V.  Omaha  Nat.  Bank,  49  N.  Y.  626,  631,  manded.     We  may,  at  least,  safely  adopt 

per  Allen  J.  this  rule  in  cases  of  doubt,  and  in  cases 

'  Gillett  V.  Treganza,    13    Wise.  472,  like  the  present,  where  the  pleader,  con- 

475,  per  Dixon  C.  J. :  "  Under  our  pres-  ceiving  himself  entitled  to  prosecute  sev- 

ent  system,  the  test  by  which  we  are  to  eral  actions,  has  so  stated  his  facts  as  to 

determine  the  character  of  actions  in  those  leave  it  uncertain  which  he  intended  to 

cases  where  the  facts  stated  Indicate  two  pursue." 


632  CIVIL    REMEDIES. 


CHAPTER  FOURTH. 

THE  DEFENSIVE  SUBJECT-MATTER  OF  THE  ACTION  ;  THE 
FORMAL  PRESENTATION  OF  HIS  DEFENCE,  OR  OF  HIS 
CLAIM    FOR  AFFIRMATIVE    RELIEF,    BY   THE   DEFENDANT. 

SECTION    FIRST. 
STATUTORY   PROVISIONS    CONCERNING   MATTERS    OF   DEFENCE. 

§  581.  I  COLLECT  together  in  one  group  all  the  sections  of  the 
various  codes  relating  to  the  nature  and  contents  of  the  answer, 
including  denials,  new  matter,  counterclaims,  set-offs,  affirmative 
relief,  and  cross-complaints.  The  clause  defining  the  answer,  and 
describing  its  contents,  is  substantially  the  same,  with  some  un- 
important variations,  in  all  the  codes  ;  the  principal,  and  indeed 
only,  material  differences  are  found  in  the  provisions  relating  to 
counterclaims  and  cross-demands  generally.  The  following  are 
the  sections  which  determine  generally  the  nature  of  the  answer 
as  a  pleading.     "  The  answer  of  the  defendant  must  contain, 

1.  A  general  or  specific  denial  of  each  material  allegation  of  the 
complaint  [or  petition]  controverted  by  the  defendant,  or  of  any 
knowledge  or   information  thereof  sufficient  to  form  a  belief; 

2.  A  statement  of  any  new  matter  constituting  a  defence  or 
counterclaim  [or  set-off]  in  ordinary  and  concise  language,  with- 
out repetition."  ^  In  a  few  States  the  foregoing  description  is- 
employed,  with  slight  verbal  changes,  and  to  it  is  added  another 
subdivision.  The  sections,  as  found  in  these  codes,  are  given  at 
large  in  the  foot-note.^ 

,  •  New  York,  §  149  ;  Wisconsin,  ch.  125,  cific  "  and  "  material  "  are  omitted,  so  that 

§  10;  Ohio,  §  92,  except,  in  subd.  1,  the  it  reads,  "  1.  A  denial  of  each  allegation," 

clause     "  or     any    knowledge,"    &c.,    is  &c.,  and  "  or  set-off"  is  inserted  in  subd.. 

omitted,  and,  in  subd.  2,  "or  set-off"  is  2;  Florida,  §  100;  Oregon,  §  71,  as  in  the 

inserted ;  Missouri,  art.  5,  §  12,  except,  text,  except  the  words  "  general  or  "  are 

in  subd.  1,  the  words  "  general  or  "  are  omitted  in  subd.  1,  wliich  reads,  "  A  spe- 

omitted,   so  that  it  reads,  "  1.  A  special  cific  denial  of,"  &c. ;  North  Carolina,  §  100  ; 

denial,"  &c. ;  Nebraska,  §  99,  with  same  South  Carolina,  §  172;  Dacotah,  §  102. 
modifications  as  in  Ohio  ;  Indiana,  §  56,  ^  Kansas,  §  94.     "  The  answer  of  the 

except  that,  in  subd.  1,  "general  or  spe-  defendant  must  contain,  1.  A  general  or 


PROVISIONS    RELATING    TO    THE    ANSWER. 


633 


§  582.  The  provisions  relating  to  the  union  of  various  defences, 
legal  or  equitable,  or  both,  and  of  various  counterclaims,  in  the  same 
answer,  are  similar  in  all  the  codes,  with  unimportant  variations, 
and  are  as  follows  :  "  The  defendant  may  set  forth,  by  answer,  as 
many  defences  and  counterclaims  as  he  may  have,  whether  they 
be  such  as  have  been  heretofore  denominated  legal  or  equitable, 
or  both.  They  must  each  be  separately  stated,  and  refer  to  the 
causes  of  action  which  they  are  intended  to  answer,  in  such  man- 
ner that  they  may  be  intelligibly  distinguished."  ^  Another  form 
found  in  several  codes  is,  "  The  defendant  may  set  forth,  by  an- 
swer, as  many  grounds  of  defence,  counterclaim,  or  set-off,  as  he 
may  have,  whether  legal  or  equitable,  or  both."  ^ 


specific  denial  of  each  material  allegation 
of  the  petition  controverted  by  the  de- 
fendant. 2.  A  statement  of  any  new 
matter  constituting  a  defence,  counter- 
claim, or  set-ofF,  or  a  right  to  relief  con- 
cerning the  subject  of  the  action,  in 
ordinary  and  concise  language  witliout 
repetition.  3.  When  relief  is  souglit,  tlie 
nature  of  tlie  relief  to  which  tlie  defend- 
ant supposes  hin^self  entitled."  Minne- 
sota, §  83,  as  in  New  York,  except  that 
the  subd.  1  reads,  "  a  denial  of  each  alle- 
gation," &c.,  and  the'ToUowing  is  added  : 
"  3.  All  equities  existing  at  tlie  time  of 
the  commencement  of  the  action  in  favor 
of  the  defendant  therein,  or  discovered  to 
exist  after  such  commencement,  or  inter- 
vening before  a  final  decision  of  sucli  ac- 
tion. And  if  the  same  are  admitted  by 
the  plaintitf,  or  the  issue  thereon  is  deter- 
mined in  favor  of  the  defendant,  he  sliall 
be  entitled  to  sucli  relief,  equitable  or 
otherwise,  as  the  nature  of  tlie  case  de- 
mands, by  judgment  or  otherwise." 
Iowa,  §  2655  :  "  The  answer  sliall  con- 
tain, 1.  The  names  of  the  court,  of  the 
county,  and  of  the  plaintiffs  and  defendants ; 
2.  A  general  denial  of  each  allegation 
of  the  petition,  or  else  of  any  knowledge 
or  information  thereof  sufficient  to  form  a 
belief;  3.  A  specific  denial  of  each  alle- 
gation of  the  petition  controverted  by  tiie 
defendant,  or  any  knowledge,  &c. ;  4.  A 
statement  of  any  new  matter  constituting 
a  defence ;  5.  A  statement  of  any  new 
matter  constituting  a  counterclaim." 
California,  §  437  :  "  The  answer  of  the 
defendant  shall  contain,  1.    If  tlie  com- 


plaint be  verified,  a  specific  denial  to 
each  allegation  of  the  complaint  con- 
troverted by  the  defendant,  or  a  denial 
thereof  according  to  his  information  and 
belief.  If  the  complaint  be  not  verified, 
then  a  general  denial  to  each  of  said 
allegations ;  but  a  general  denial  only 
puts  in  issue  the  material  allegations  of 
the  complaint.  2.  A  statement  of  any 
new  matter  in  avoidance,  or  constituting 
a  defence  or  counterclaim." 

1  New  York,  §  150,  last  paragraph  ; 
Wisconsin,  ch.  125,  §  13;  Ohio,  §  93, 
adding  "and  set-offs-''  after  "counter- 
claims ;  "  Missouri,  art.  5,  §  18,  last  para- 
graph, and  §  14,  as  follows  :  "  Different 
consistent  defences  may  be  stated  in  the 
same  answer  ;  "  Minnesota,  §  85  ;  Florida, 
§  101,  last  paragraph  ;  Oregon,  §  72,  last 
paragraph,  omitting  the  clause  concerning^ 
legal  and  equitable  defences  ;  California, 
§  441,  with  same  omission  as  in  the  last ; 
North  Carolina,  §  102  ;  South  Carolina, 
§  173,  last  paragraph  ;  Dacotah,  §  IO3, 
last  clause. 

-  Kansas,  §  94,  last  paragraph,  adding 
"  and  for  relief"  after  "  set-off;  "  Ne- 
braska, §  100,  omitting  the  words 
"whether  legal  or  equitable,  or  both;" 
Indiana,  §  56,  subd.  3,  as  follows : 
"  3.  The  defendant  may  set  forth  in  his 
answer  as  many  grounds  of  defence, 
counterclaim,  and  set-off,  whether  legal 
or  equitable,  as  he  shall  have.  Each 
shall  be  distinctly  staled  in  a  separate 
paragraph,  and  numbered,  and  clearly  re- 
fer to  the  cause  of  action  intended  to  be 
answered;  "  Iowa,  §  2655,  subd.  6,  as  fol- 


634 


CIVIL  REMEDIES. 


§  583.  Most  of  the  codes  are  in  substantial  agreement  as  to  the 
nature  and  object  of  the  counterclaim.  In  a  few,  however,  there 
is  a  departure  from  this  common  type  ;  and  in  some  there  are 
special  clauses  relating  to  set-off  as  a  form  of  defence  different 
from  the  counterclaim.  All  these  statutory  provisions  are  collected 
in  the  text  or  in  the  notes.  The  following  definition  has  been 
adopted  in  a  majority  of  the  States :  "  The  counterclaim  men- 
tioned in  the  last  section  must  be  one  existing  in  favor  of  a  de- 
fendant and  against  a  plaintiff  between  whom  a  several  judgment 
might  be  had  in  the  action,  and  arising  out  of  one  of  the  following 
causes  of  action :  1.  A  cause  of  action  arising  out  of  the  contract 
or  transaction  set  forth  in  the  complaint  [petition]  as  the  founda- 
tion of  the  plaintiff's  claim,  or  connected  with  the  subject  of  the 
action  ;  2.  In  an  action  arising  on  contract,  any  other  cause  of  ac- 
tion arising  also  on  contract,  and  existing  at  the  commencement  of 
the  action."  ^  The  corresponding  sections  in  the  codes  of  Indiana 
and  of  Iowa  are,  however,  quite  different,  and  are  given  at  length 
in  the  foot-note.  It  will  be  seen  that  they  enlarge  the  scope  of 
the  counterclaim,  and  that,  in  Iowa,  the  restriction  as  to  parties 
is  very  much  modified.^ 


lows :  "  6.  Tlie  defendant  may  set  forth 
in  his  answer  as  many  causes  of  defence 
or  counterclaims,  whether  legal  or  eqvii- 
tabie,  as  he  may  have  ;  "  and  §  2657, 
"  Each  affirmative  defence  shall  be  stated 
in  a  distinct  division  of  the  answer,  and 
must  be  sufficient  in  itself,  and  must  in- 
telligibly refer  to  the  part  of  the  petition 
to  which  it  is  intended  to  apply." 

1  New  York,  §  150  ;  Ohio,  §  94,  to  and 
including  subd.  1,  and  omitting  the  rest. 
The  matter  of  the  second  subdivision  ap- 
pears in  a  subsequent  section  under  the 
definition  of  "  set-off;  "  Missouri,  art.  5, 
§  13,  as  in  the  text ;  Minnesota,  §  84,  as 
in  tiie  text ;  Florida,  §  101,  as  in  the  text; 
Nebraska,  §  101,  as  in  Ohio ;  Kansas, 
§  95,  as  in  Ohio,  and  adding  the  follow- 
ing in  reference  to  the  "right  to  relief," 
which  §  94  expressly  permits  a  defendant 
to.  state  in  his  answer  :  "  The  right  to  re- 
lief concerning  the  subject  of  the  action 
mentioned  in  the  same  section  (§  94)  must 
be  a  right  to  relief  necessarily  or  properly 
involved  in  the  action,  for  a  complete  de- 
termination thereof,  or  settlement  of  the 
questions  involved  therein."     This  clause 


plainly  describes  what  is  often  called  "  an 
equitable  counterclaim,"  and  puts  to  rest 
all  doubts  respecting  such  a  counterclaim 
in  that  State.  Wisconsin,  ch.  125,  §  11, 
as  in  the  text,  with  the  following  addi- 
tion :  "  When  the  plaintiflT  is  a  non-resi- 
dent of  this  State,  such  counterclaim  may 
arise  out  of  any  cause  of  action  whatever 
existing  at  the  time  of  the  commencement 
of  the  action,  and  arising  within  this 
State  ;  provided  that  no  claim  assigned  to 
the  defendant  shall  he  pleaded  as  a  counter- 
claim in  any  action  to  which  this  subdi- 
vision is  applicable  ;  "  Oregon,  §  72,  as  in 
the  text,  except,  in  subd.  1,  the  words  "  or 
connected  with  tlie  subject  of  the  action  " 
are  omitted  ;  California,  §  438,  as  in  the 
text,  except  the  words  "  contract  or  "  are 
omitted  from  tlie  first  subdivision  ;  North 
Carolina,  §  101 ;  South  Carolina,  §  173  ; 
Dacotah,  §  103. 

-  Indiana,  §  59:  "A  counterclaim  is 
any  matter  arising  out  of  or  connected 
with  the  cause  of  action  wliich  mi;^ht  be 
the  subject  of  an  action  in  favor  of  the 
defendant,  or  which  would  tend  to  reduce 
the  plaintiff's  claim  or  demand  for  dam- 


PROVISIONS    RELATING   TO   THE    ANSWER. 


635 


§  584.  The  "  set-off,"  well  known  prior  to  the  new  system  of 
procedure,  and  which  had  been  defined  and  regulated  by  previous 
statutes,  English  and  American,  is  clearly  embraced  within  the 
second  subdivision  of  the  section,  as  stated  in  the  text,  and  as 
found  in  the  codes  of  New  York  and  of  the  States  which  have 
closely  followed  that  original  type.  In  certain  States,  however, 
a  special  provision  is  inserted  in  the  codes  defining  the  "  set-off," 
of  which  the  following  is  the  common  form  :  "  A  set-off  can  only 
be  pleaded  in  an  action  founded  on  contract,  and  must  be  a  cause 
of  action  arising  on  contract,  or  ascertained  by  a  decision  of  the 
court."  ^  There  are  additional  special  clauses  in  several  of  these 
codes  regulating  the  procedure  in  respect  to  "set-off"  and 
"  counterclaim,"  particularly  in  their  relations  with  the  parties  to 
the  action.  These  sections  provide  for  the  bringing  in  of  new 
parties  found  necessary  to  the  determination  of  the  issues  raised 
by  the  (lefendant's  affirmative  pleading,  or  for  the  extending  the 
benefits  of  a  set-off  or  counterclaim  existing  in  favor  of  a  princi- 
pal debtor,  to  his  sureties,  or  existing  in  favor  of  one  of  two  or 
more  joint  debtors,  to  the  others.  These  sections  are  copied  in 
the  note.^ 


ages."  Iowa,  §  2659  :  "  Each  counter- 
claim must  be  stated  in  a  distinct  count  or 
division,  and  must  be,  1.  When  the  ac- 
tion is  founded  on  contract,  a  cause  of 
action  also  arising  on  contract  or  ascer- 
tained by  the  decision  of  a  court.  [This 
is  identical  with  the  "  set-off"  of  several 
other  State  codes,  and  of  all  former  revi- 
sions of  the  code  in  Iowa.]  2.  A  cause  of 
action  in  favor  of  the  defendants,  or  some 
of  them,  against  the  plaintiffs,  or  some  of 
them,  arising  out  of  the  'contracts  or 
transactions  set  forth  in  the  petition,  or 
connected  with  the  subject  of  the  action. 
[This  was  the  "  counterclaim  "  of  all  the 
former  revisions  of  the  Iowa  Code.  Its 
marked  departure  from  the  common  type 
in  reference  to  the  parties  between  ichom  a 
several  judfjment  in  the  action  is  possible 
will  be  noticed.]  3.  Any  new  matter  con- 
stituting a  cause  of  action  in  favor  of  the 
defendant,  or  all  of  the  defendants,  if  more 
than  one,  against  the  plaintiflf,  or  all  of 
the  plaintiffs,  if  more  than  one,  and  which 
the  defendant  or  defendants  might  have 
brought  when  suit  was  commenced,  or 
which  was  then  held  either  matured  or 


not,  if  matured  when  so  pleaded."  [This 
is  the  "cross-demand  "  of  former  revisions 
of  the  Iowa  Code,  and  is  broader  than  the 
counterclaim,  as  it  may  be  anj/  cause  of 
action,  but  it  must  be  between  all  the 
parties.] 

i  Ohio,  §  97  ;  Kansas,  §  98  ;  Nebraska, 
§  104  ;  Indiana,  §  57.  "  The  set-oflF  shall 
be  allowed  only  in  actions  for  money  de- 
mands upon  contract,  and  must  consist  of 
matter  arising  out  of  a  debt,  duty,  or  con- 
tract liquidated  or  not,  held  by  the  de- 
fendant at  the  time  the  suit  was  com- 
menced, and  matured  at  or  before  the 
time  it  was  offered  as  a  set-off."  Wiscon- 
sin, ch.  126,  containing  eight  sections, 
treats  of  "set-ofF"  with  much  detail. 

2  "  Whenever  it  appears  that  a  new 
party  is  necessary  to  a  final  decision  upon 
the  counterclaim,  the  court  may  either 
permit  the  new  party  to  be  made  by  a 
summons  to  reply  to  the  counterclaim,  or 
may  direct  the  counterclaim  to  be  struck 
out  of  the  answer,  and  made  the  subject 
of  a  separate  action."  Ohio,  §  96 ;  Kan- 
sas, §  97  ;  Nebraska,  §  103  ;  Iowa,  §  2662  ; 
Indiana,   §    63 :    "  Whenever   it   appears 


636  CIVIL   REMEDIES. 

§  585.  A  cross-petition  or  complaint  is  expressly  authorized 
and  its  purposes  defined  in  one  or  two  of  the  State  codes  ;  as,  for 
example,  in  that  of  lowa.^  A  section  found  in  most  of  the  codes 
provides  that  "  sham  and  irrelevant  answers  and  defences  may  be 
stricken  out  on  motion,  and  upon  such  terms  as  the  court  may 
in  their  discretion  impose."  ^ 

§  586.  Pleadings  hy  the  Plaintiff  Responsive  to  the  Defendant'' b 
Answer.  All  the  codes  permit  the  plaintiff  to  demur  to  the  entire 
answer,  or  to  any  separate  defence  therein  containing  new  mat- 
ter, or  to  any  counterclaim  therein,  on  the  ground  that  the  same 
is  insufficient,  or  that  the  facts  therein  stated  do  not  constitute  a 
defence  or  a  counterclaim.^ 

§  587.  In  respect  to  the  mode  of  raising  an  issue  of  fact  upon 
the  allegations  of  the  answer  which  are  not  mere  denials,  the 
codes  are  separated  into  two  classes, —  those  which  require  an 
additional  pleading  by  the  plaintiff  in  order  to  raise  sach  issues 
in  all  instances,  and  those  which  require  such  additional  pleading 
only  in  response  to  counterclaims.  In  the  first  class,  a  reply  by 
the  plaintiff  is  needed  to  all  answers  or  defences  that  set  up  new 
matter,  whether  as  counterclaims  or  as  defences  simply,  which 
repl}^  may  consist  either  of  denials  or  of  other  new  matter  by  way 

that  a  new  party  is  necessary  to  a  final  a  set-off  by  the  principal  or  any  other  de- 
decision  upon  the  set-ofF,  the  court  shall  fendant."  Indiana,  §  58. 
permit  the  new  party  to  be  made,  if  it  i  Iowa,  §  2663:  "When  a -defendant 
also  appears,  that  owing  to  the  insolvency  has  a  cause  of  action  affecting  tlie  subject 
or  non-residence  of  the  plaintiff",  or  other  of  the  action  against  a  co-defendant,  or  a 
cause,  the  defendant  will  be  in  danger  of  person  not  a  party  to  the  action,  he  may, 
losing  his  claim,  unless  permitted  to  use  in  the  same  action,  file  a  cross-petition 
it  as  a  set-ofF."  Ohio,  §  98;  Kansas,  against  the  co-defendant  or  other  person. 
§  99 ;  Nebraska,  §  105.  "  A  co-maker  or  The  defendants  thereto  may  be  notified 
surety,  when  sued  alone,  may,  with  the  as  in  other  cases,  and  defence  thereto 
consent  of  his  co-maker  or  principal,  shall  be  made  in  the  time  and  manner  pre- 
avail  himself,  by  way  of  counterclaim,  of  scribed  in  regard  to  the  original  petition." 
a  debt  or  liquidated  demand  due  from  the  -New  York,  §  152;  Wisconsin,  ch. 
plaintiff  at  the  commencement  of  the  suit  125,  §  15;  Minnesota,  §  86;  Missouri, 
to  such  co-maker  or  principal;  but  the  art.  5,  §  19;  Indiana,  §77;  Iowa,  §  2707; 
plaintiff  may  meet  such  counterclaim  in  Florida,  §  102  ;  Oregon,  §  74  ;  CaUfornia, 
the  same  way  as  if  made  by  the  co-maker  §  453  ;  North  Carolina,  §  104 ;  South 
or  principal  himself"    Iowa,  §  2661  :   "  In  Carolina,  §  175. 

all  actions  upon  a  note  or  otiier  contract  ^  j.jgw    York,    §   153  ;  Wisconsin,  ch. 

against   several  defendants,   any   one   of  125,  §  16  ;  Ohio,  §  101 ;  Missouri,  art.  5, 

whom  is  principal  and  the  others  sureties  §  15;  Minnesota,  §  87;  Kansas,  §   102; 

therein,  any  claim  upon  contract  in  favor  Nebraska,  §  109;  Iowa,  §  2664  ;  Indiana, 

of   tiie   principal  defendant   against   the  §64;  Florida,  §  103 ;  Oregon,  §76;  Cah- 

plaintifT,    or   any   former   holder   of  the  fornia,     §§    443,   444 ;     North    Carolina, 

note  or  other  contract,  may  be  pleaded  as  §  105;  South  Carolina,  §  176  ;  Dacutah, 

§  106. 


PROVISIONS    RELATING    TO    THE    ANSWER. 


637 


of  avoidance.  As  a  consequence  of  this  requirement,  every  alle- 
gation of  new  matter  in  the  answer,  whether  by  way  of  defence 
or  of  counterclaim,  not  controverted  by  a  reply,  is,  in  such  States, 
admitted  to  be  true.  The  reply  is  the  last  pleading  of  fact ;  the 
defendant  may  demur  to  it,  but  not  rejoin  any  defence  of  fact.^ 

§  588.  In  the  second  class  of  codes,  a  reply  is  only  necessary  to 
a  counterclaim.  Whenever  an  answer  contains  new  matter  by 
way  of  defence,  and  not  constituting  a  counterclaim,  an  issue  of 
fact  is  raised  by  operation  of  law,  and  the  plaintiff  may  prove,  in 
response  thereto,  any  facts  by  way  of  denial  or  of  confession  and 
avoidance.  If  a  counterclaim  is  pleaded,  the  plaintiff  must  reply 
thereto  either  by  denials  or  by  confession  and  avoidance  ;  and  in 
the  absence  of  such  reply,  the  allegations  of  the  counterclaim  are 
admitted  to  be  true.  No  pleading  is  permitted  in  response  to  the 
reply  except  a  demurrer,  which  may  be  used  to  raise  an  issue  of 
law.^ 


1  In  this  class  are  the  following  codes  : 
Ohio,  §  101  :  "  When  the  answer  contains 
new  matter,  tlie  plaintiff  may  reply  to 
such  new  matter,  denying  generally  or 
specifically  each  allegation  controverted 
by  him  ;  and  he  may  allege,  in  ordinary 
and  concise  language,  and  witliout  repeti- 
tion, any  new  matter  not  inconsistent  with 
the  petition  constituting  an  answer  in  law 
to  such  new  matter.  To  this  reply  the 
defendant  may  demur."  §  127  :  "  Every 
material  allegation  of  the  petition  not  con- 
troverted by  the  answer,  and  every  'ma- 
terial allegation  of  new  matter  in  the 
answer  not  controverted  by  the  repi}', 
shall,  for  the  purposes  of  the  action,  be 
taken  as  true ;  but  the  allegations  of  new 
matter  in  the  reply  shall  be  deemed  con- 
troverted by  the  adverse  party  as  upon  a 
direct  denial  or  avoidance."  So  also  in 
Missouri,  art.  5,  §§  15,  36  ;  Kansas,  §§  102, 
103,  128  ;  Nebraska,  §§  109, 134  ;  Indiana, 
§§  67,  74;  Oregon,  §§  75,  92.  Iowa, 
§  2665  :  "  There  shall  be  no  reply,  except, 

1.  When  a  counterclaim  is   alleged ;  or, 

2.  When  some  matter  is  alleged  in  tlie 
answer  to  which  the  plaintiff'  claims  to 
have  a  defence  by  reason  of  the  existence 
of  some  fact  wliich  avoids  the  matter  al- 
leged in  the  answer."  §  2666  ;  "  Wlien  a 
reply  must  be  filed,  it  must  consist  of, 
1.  A  general  denial  of  each  allegation 
or  counterclaim  controverted,  or  of  any 


knowledge  or  information  thereof  suffi- 
cient to  form  a  belief ;  or,  2.  Any  new 
matter,  not  inconsistent  with  the  petition, 
constituting  a  defence  to  the  new  matter 
alleged  in  the  answer ;  or  the  matter  in 
the  answer  may  be  confessed,  and  any 
new  matter  alleged,  not  inconsistent  with 
the  petition,  which  avoids  the  same." 

^  Wisconsin,  ch.  125,  §  16  :  "  When 
the  answer  contains  new  matter  constitut- 
ing a  counterclaim,  the  plaintiff  may  reply 
to  such  new  matter  denying  [generally  or] 
specifically  each  allegation  controverted 
by  him,  or  any  knowledge  or  information 
tliereof  sufficient  to  form  a  belief;  and  he 
may  allege,  in  ordinary  and  concise  lan- 
guage, without  repetition,  any  new  mat- 
ter not  inconsistent  with  the  complaint 
constituting  a  defence  to  such  new  mat- 
ter in  the  answer  [this  section  shall 
not  be  construed  to  permit  the  plaintifl^to 
reply  a  specific  cause  of  action  which  he 
miglit  have  inserted  in  his  complaint]  ;  " 
and  §§  17,  18,  33,  34:  Also  Minnesota, 
§§  87,  88,  89 ;  New  York,  §§  153, 154, 155, 
168.  To  the  foregoing  provision  defining 
the  use  of  a  reply,  §  153  of  New  York 
adds  tlie  following  :  "  And  in  other  cases, 
where  the  answer  contains  new  matter 
constituting  a  defence  by  way  of  avoid- 
ance, the  court  may  in  its  discretion,  on 
the  defendant's  motion,  require  a  reply 
to  such  new  matter  ;  and,  in  that  case,  the 


638  CIVIL   REMEDIES. 

§  589.  The  foregoing  is  the  general  scheme  of  pleading  as  set 
forth,  with  sliglit  variations  of  form,  and  with  no  real  variations 
of  principle,  in  all  the  codes.  A  few  additional  provisions  are 
found  in  some  of  the  codes  which  do  not  in  any  manner  affect  the 
common  theory,  but  which  were  evidently  inserted  for  purposes 
of  exactness,  or  to  put  at  rest  some  doubts  as  to  the  construction 
of  the  statute.     These  clauses  I  have  collected  in  tbe  note.^ 

§  590.  While  the  very  central  principle  of  the  reformed  pro- 
cedure is,  that  all  causes  of  action,  and  all  defences,  except  those 
of  general  denial,  must  be  specially  pleaded,  —  that  is,  pleaded  in 
accordance  with  the  actual  facts,  —  and  while,  as  a  necessary 
consequence,  there  must  be  an  agreement  between  the  facts 
proved  and  the  facts  alleged,  yet  the  codes  are  careful  to  prevent 
any  failure  of  justice  by  reason  of  a  mere  failure  to  comply  with 
this  rule.  Ample  means  of  correcting  mistakes  are  provided. 
The  utmost  liberality  in  this  respect  runs  through  them  all,  and 
the  provisions  are  the  same  in  substance,  and  almost  identical  in 
language.  As  these  clauses  apply  alike  to  the  pleadings  by  the 
plaintiff  and  by  the  defendant,  they  have  already  been  stated  in 
the  preceding  chapter. ^ 

§  591.  Upon  the  basis  of  the  foregoing  citations,  I  am  prepared 
to  present  the  theory  of  the  defence  as  formulated  in  the  codes, 
and  as  wrought  out  by  the  judicial  interpretation  thereof.  The 
fundamental  principles  of  pleading  adopted  by  the  reformed 
American  system,  and  applicable  alike  to  the  allegations  made  by 
the  plaintiff  and  by  the  defendant,  have  already  been  discussed 

reply  shall  be  subject  to  the  same  rules  against  a  co-defendant,  concerning  the 
as  a  reply  to  a  counterclaim."  Florida,  subject  of  the  action,  such  co-defendant 
§§  103,  104,  105,  118,  as  in  New  York;  may  demur  or  reply  to  such  matter  in 
North  Carolina.  §§  105,  127  ;  South  Caro-  the  same  manner  as  if  he  were  plaintiff, 
Una,  §§  176,  191 ;  Dacotah,  §§  lOG,  108,  and  subject  to  the  same  rules  so  far  as 
121.  In  California  no  reply  is  allowed  in  applicable."  Iowa,  §  2667  :  "  Any  num- 
either  case.  her  of  defences,  negative  or  affirmative, 
1  Missouri,  art.  5,  §  21 :  "  Duplicity  is  a  are  pleadable  to  a  counterclaim  ;  and  each 
substantial  objection  to  the  petition  or  affirmative  matter  of  defence  in  the  reply 
other  pleading,  and  shall,  on  motion,  be  shall  be  sufficient  in  itself,  and  must  in- 
stricken  out."  §  32  :  "  In  all  actions  telligibly  refer  to  the  part  of  tiie  answer 
founded  on  contract,  and  instituted  to  which  it  is  intended  to  apply"  Indi- 
against  several  defendants,  the  plaintiff  ana,  §  66  :"  All  defences,  except  the  mere 
shall  not  be  nonsuited  by  reason  of  his  denial  of  the  facts  alleged  by  the  plaintiff, 
failure  to  prove  that  all  the  defendants  shall  be  pleaded  specially."  §  91  :  "  Un- 
are  parties  to  the  contract,  but  may  have  der  a  mere  denial  of  any  allegation,  no 
judgment  against  such  of  them  as  he  shall  evidence  shall  be  introduced  which  does 
prove  to  be  parties  thereto."  Kansas,  not  tend  to  negative  what  the  party  mak- 
§  104:  "When  the  answer  contains  new  ing  the  allegation  is  bound  to  prove." 
matter    constituting    a    right    to    relief  ^  Supra,  §  435. 


GENERAL   REQUISITES    OF   THE   ANSWER.  639 

in  the  preceding  chapter ;  and  I  shall,  therefore,  confine  myself 
to  matters  purely  defensive.  Following  an  order  suggested  alike 
by  the  mode  of  arrangement  pursued  in  the  statute,  and  by  the 
logical  development  of  the  subject-matter  itself,  the  chapter  will 
be  separated  into  sections,  which  will  treat  respectively,  I.  Of 
the  general  requisites  of  an  answer,  and  of  the  general  rules  ap- 
plicable to  all  answers  ;  II.  Of  answers  or  defences  consisting  of 
denials  either  general  or  specific  ;  III.  Of  answers  or  defences 
consisting  of  new  matter  ;  IV.  Of  the  union  of  different  defences, 
whether  legal  or  equitable,  in  one  answer  ;  V.  Of  counterclaims, 
and  other  affirmative  relief. 


SECTION  SECOND. 

THE   GENERAL  REQUISITES    OF   AN  ANSWER,   AND   THE   GENERAL 
RULES   APPLICABLE    TO   ALL   ANSWERS. 

§  592.  Before  examining  the  different  kinds  of  defence  possible 
under  the  codes,  and  the  particular  rules  relating  to  each,  I  shall 
state  and  explam  the  few  doctrines  and  rules  which  apply  to  all 
forms  of  answer,  and  which  have  not  been --already  embraced  in 
the  discussion  of  the  general  principles  of  pleading  contained  in 
the  preceding  chapter.  There  are  a  few  doctrines,  practical  rather 
than  theoretical,  pertaining  to  the  answer  considered  as  an  inde- 
pendent pleading,  which  should  be  investigated  before  proceeding 
with  the  mass  of  detail  which  will  make  up  the  bulk  of  the  pres- 
ent chapter. 

§  593.  Answers  are  separated  by  the  codes  into  two  classes, — 
those  which  consist  of  denials,  and  therefore  serve  the  sole  pur- 
pose of  raising  a  direct  issue  upon  the  plaintiff's  allegations  ;  a,nd 
those  which  state  what  the  codes  call  "new  matter,"  —  that  is, 
facts  different  from  those  averred  by  the  plaiutiff,  and  not  em- 
braced within  the  judicial  inquiry  into  their  truth.  The  latter 
class  is  again  subdivided  into  those  in  which  the  "  new  matter  "  is 
simply  defensive,  and,  if  true,  destroys  or  bars  the  plaintiff's  right 
of  action  ;  and  those  in  which  the  "  new  matter  "  is  the  statement 
of  an  independent  cause  of  action  in  favor  of  the  defendant  against 
the  plaintiff,  which  is  to  be  tried  at  the  same  time  with  that  set 
up  by  the  plaintiff,  to  the  end  that  a  recovery  upon  it  may  be 
used  in  opposition  to  the  recovery  upon  the  plaintiff 's  demand. 


640  CIVIL   REMEDIES. 

by  either  diminishing,  equalling,  or  exceeding  the  same.  It  is 
plain,  from  tliis  brief  description,  that  the  answers  included  in 
the  latter  subdivision  are  not,  in  any  true  sense  of  the  word,  de- 
fences ;  they  do  not  defeat  or  bar  the  plaintiff's  right  of  action. 
They  are,  in  truth,  independent  causes  of  action  in  favor  of  the 
defendant,  —  cross-demands,  —  which,  for  purposes  of  conven- 
ience merely,  are  tried  and  determined  at  one  and  the  same  time. 
There  are  two  suits,  to  neither  of  which,  perhaps,  exists  any  de- 
fence, litigated  and  decided  in  the  one  judicial  proceeding  ;  and 
the  final  balance  in  favor  of  one  party  is  awarded  to  him  by  the 
single  judgment  of  the  court.  This  is  the  true  theory  of  the  an- 
swers embraced  in  the  last  subdivision ;  and  it  is  fully  approved 
and  adopted  by  decisions  of  authority  which  will  be  cited  in  the 
subsequent  section,  which  treats  of  the  "  counterclaim." 

§  694.  Two  kinds  of  questions  may  arise  in  reference  to  all  an- 
swers, —  namely,  (1)  those  of  substance  and  (2)  those  of  form. 
The  first  class  relate  to  the  sufficiency  of  the  pleading,  assuming 
that  its  allegations  are  correct  in  respect  to  their  merely  formal 
character  ;  the  second  class  relate  exclusively  to  the  form  and 
external  mode  of  setting  forth  the  facts,  assuming  that,  if  properly 
stated,  they  would  be  sufficient  to  constitute  a  valid  answer.  It 
is  difficult  to  conceive  that  a  question  of  substance  should  arise 
upon  an  answer  consisting  only  of  denials.  Such  an  answer 
might  be  insufficient :  it  might  raise  no  complete  issue,  because 
its  denials  were  too  limited,  and  were  interposed  to  a  part  only  of 
the  plaintiff's  allegations,  thus  admitting  by  their  silence  other 
averments  to  such  an  extent  that  a  cause  of  action  in  his  favor  was 
conceded  upon  the  record ;  but  here  the  question  of  substance 
would  not  arise  from  the  matter  contained  in  the  answer,  but 
from  the  absence  of  matter  therein.  The  questions  that  can  arise 
upon  an  answer  of  denials  must,  therefore,  be  those  of  form, — 
questions  whether  the  denials  themselves  are  in  such  a  form  that 
the  averments  of  the  complaint,  or  some  of  them,  are  sufficiently 
negatived  in  order  to  present  an  issue  or  issues  for  trial  and 
decision.  If  the  answer  falls  within  the  second  class,  —  that 
is,  if  it  sets  up  new  matter,  either  by  way  of  defence,  or  by  way 
of  counterclaim,  set-off,  or  cross-demand,  —  the  questions  arising 
upon  it  may  be  either  of  substance  or  of  form. 

§  595.  What  can  be  the  possible   nature  of  these  questions  of 
substance  ?     The  section  of  the  codes  enumerating  the  grounds 


DEFECTIVE    ANSWERS.  641 

of  demurrer  to  the  complaint  or  petition  contains?  a  complete  list 
of  such  questions.     As  found  in  most  of  the  codes,  they  are  six  in 
number,  —  namely,  (1)  want  of  jurisdiction  in  the  court  over  the 
person  of  the  defendant,  or  the  subject-matter  of  the   action  ; 
(2)  want  of  legal  capacity  to  sue  in  the  plaintiff;  (3)  the  pen- 
dency of  another  action  between  the  same  parties  for  the  same 
cause  ;  (4)  defect  of  parties  plaintiff  or  defendant ;  (5)  a  mis- 
joinder of  causes  of  action  ;  (6)  failure  to  state  facts  constituting 
a  cause  of  action.     To  these  there  is  added,  in  one  or  two  codes, 
(7)  a  misjoinder  of  parties  plaintiff  or  defendant.     It  is  very  plain 
that,  except  in  a  special  case  to  be  mentioned  hereafter,  only  one 
of  these  species  of  substantial  questions  can  possibly  arise  in  re- 
spect to  the  answer,  namely,  the  sixth,  whether  the  facts  stated 
are  sufficient  to  constitute  a  defence.     Objections  as  to  the  juris- 
diction of  the  court,  the  legal  capacity  of  the  plaintiff  to  sue,  the 
pendency  of  another  action,  and  the  misjoinder  of  causes  of  action, 
must  necessarily  be  confined  to  and  be  decided  by  the  complaint 
or  petition.     If  the  plaintiff's  pleading  is  free,  the  answer  can  in 
no  manner  be  exposed  to  any  of  them.     It  may,  of  course,  set  up 
these  objections  as  matters  of  defence  ;  but  the  objection  would 
still  inhere  in  the  plaintiff's  cause  of  action  and  pleading,  and 
would  not  be  involved  in  the  answer  itself.     The  same  is  true 
in  respect  to  the  nonjoinder  or  misjoinder  of  parties  in  all  cases 
where  the  answer  is  simply  defensive.     It  may  certainly  aver  a 
nonjoinder  or  a  misjoinder  as  a  defence ;  but  the  question  thus 
raised  would  still  depend  upon  the  complaint  or  petition ;  the 
answer  could  not  by  itself,  as  the  initiative,  create  a  nonjoinder 
or  misjoinder  of  parties.     There  is  one  special  case,  however,  in 
which  the  answer  may,  for  the  first  time,  involve  the  question  as 
to  the  proper  joinder  of  parties.     Where  it  sets  up  a  counterclaim 
or  set-off,  and  the  defendant  thus  makes  himself,  in  respect  to 
such  demand,  a  plaintiff  in  fact,  though  not  in  name,  the  answer 
may  be  governed  by  the  same  rules  which  govern  the  complaint 
or  petition.     The  cause  of  action  thus  alleged  may  be  of  such  a 
character  that  the  original  parties  to  the  record  are  either  too  few 
or  too  many.     An  answer  of  this  class  may  therefore,  in  itself, 
and  by  means  of  its  own  averments,  independently  of  the  plain- 
tiff's pleading,  raise  and  involve  questions  of  substance  relating 
to  the  proper  joinder  of  parties  to  the  action.     The  codes  of  sev- 
eral States  recognize  this  fact,  and  expressly  provide  for  the  briug- 

41 


642  CIVIL   REMEDIES. 

ing  ill  of  additional  parties  made  necessary  by  the  allegations  of 
a  counterclaim  or  set-off.  "With  this  single  exception,  it  is  plain 
that  the  only  questions  of  substance  which  can  arise  in  respect  to 
any  answer  must  relate  to  the  sufficiency  of  the  facts  alleged  to 
constitute  a  defence,  or  counterclaim,  or  set-off.  Upon  this  as- 
sumption, the  language  employed  by  the  legislature  in  some  of 
the  States  permits  a  demurrer  to  the  answer  on  the  ground  of 
"  insufficiency  ;  "  in  others,  "  where,  upon  its  face,  it  does  not 
constitute  a  counterclaim  or  defence;"  and,  in  others  still, 
*'  where  the  facts  alleged  do  not  constitute  a  defence  or  counter- 
claim." And  recognizing  the  further  fact,  that  these  questions 
of  substance  cannot  arise  upon  answers  which  consist  only  of 
denials,  the  language  of  several  codes  confines  the  demurrer  to 
"  new  matter,"  set  up  in  the  answer  by  way  of  defence  or  counter- 
claim. 

§  596.  Under  the  common-law  system  of  procedure,  the  ques- 
tions of  substance  in  the  defendant's  pleas,  if  the  objection  ap- 
peared on  their  face,  were  raised  by  a  general  demurrer,  while 
those  of  form  were  raised  by  a  "  special  demurrer."  The  reformed 
procedure  retains  the  general  demurrer  for  the  same  purpose  which 
it  subserved  at  the  common  law.  Where  the  answer,  as  in  some 
States,  or  the  new  matter  in  the  answer,  as  in  others,  does  not 
state  facts  constituting  a  defence,  or  counterclaim,  or  set-off,  as 
the  case  may  be,  a  demurrer,  on  the  ground  of  insufficiency,  is 
the  proper  mode  of  raising  and  presenting  the  question  for  deci- 
sion to  the  court.  Special  demurrers,  however,  are  utterly  abol- 
ished. If  the  defect  is  one  merely  of  form  ;  if  the  denials,  for 
example,  —  although  sufficiently  addressed  to  the  plaintiff's  alle- 
gations to  indicate  the  intended  issues, —  are  so  formally  defective 
that  it  is  a  question  whether  the  denial  or  denials  attempted  to  be 
made  do  in  fact  accomplish  the  j)urpose  for  which  they  were  de- 
signed ;  or  if  the  averments  of  new  matter  in  some  sort  embrace 
or  refer  to  facts  which,  if  properly  pleaded,  would  amount  to  a 
defence  or  counterclaim,  but  are  stated  in  such  an  uncertain, 
ambiguous,  inferential  manner,  that  it  is  a  question  whether  they 
can  avail  to  the  defendant,  —  in  such  cases  it  is  settled  that  the 
demurrer  is  not  the  proper  mode  of  reaching  the  defect.  Instead 
of  the  special  demurrer,  the  codes  have  substituted  the  motion  to 
make  the  pleading  more  definite  and  certain.  If  no  such  motion 
is  made,  and  the  plaintiff  goes  to  trial  upon  the  answer  as  it 


DEFECTIVE    ANSWERS.  643 

stands,  he  will  not  be  suffered  to  raise  the  objection  there  for  the 
first  time,  and  to  exclude  evidence  of  the  defence  or  counterclaim 
on  the  ground  that  it  is  informally  pleaded. 

§  597.  This  general  rule  is  well  settled  ;  but  there  has  been 
some  conflict  of  decision  in  its  practical  application,  and  judges 
have  occasionally  made  use  of  very  inaccurate  language  while  in- 
voking it,  which  has  tended  to  add  confusion  to  a  matter  which 
should  be  kept  clear  and  certain.  Thus,  judges  of  great  learning 
and  ability,  and  who  are  usually  guarded  in  their  choice  of  ex- 
pressions, in  discussing  the  character  of  pleadings,  both  comj)laints 
or  petitions  and  answers,  when  the  objection  to  them  was  pre- 
sented for  the  first  time  at  the  trial,  and  evidence  in  support  of 
the  cause  of  action  or  defence  was  opposed  on  the  ground  then 
first  stated,  that  the  allegations  were  insufficient,  have  said,  that 
although  the  pleading  was  in  fact  defective,  and  even  though  it 
was  so  defective  as  to  be  demurrable^  yet,  as  the  adverse  party 
had  not  demurred,  nor  moved  to  make  it  more  certain,  but  had 
gone  to  trial  upon  it,  he  had  thereby  waived  all  objection  to  its 
sufficiency.  This  language  is  certainly  inaccurate,  and  unneces- 
sarily confuses  a  subject  which  is  in  itself  not  free  from  difficulty. 
It  is,  beyond  a  doubt,  true,  that  if  the  answer  or  other  pleading  is. 
defective  in  such  a  manner,  and  to  such  an  extent  only,  that  the 
proper  method  of  correction  is  a  motion  to  make  it  more  definite 
and  certain,  and  if  the  adverse  party  omits  to  make  the  motion, 
but  goes  to  trial,  he  thereby  waives  the  objection,  and  cannot 
raise  it  by  attempting  to  shut  out  evidence  of  the  cause  of  action 
or  defence.  But  if  the  defect  is  of  such  a  nature  that  a  demurrer 
is  proper,  and  the  pleading  would  be  held  insufficient  upon  a  de- 
murrer, it  is.  equally  certain  that  the  adverse  party  does  not  waive 
the  objection  by  going  to  trial  without  demurring.  If  the  plead- 
ing was  a  complaint  or  petition,  the  ground  of  demurrer  would 
necessarily  be,  that  it  did  not  state  facts  sufficient  to  constitute  a 
cause  of  action  ;  and,  by  an  express  provision  of  all  the  codes,  this 
ground  is  not  waived  by  answering  and  going  to  trial.  If  the 
pleading  was  an  answer,  the  ground  of  demurrer  w^ould  still  be 
that  the  facts  stated  did  not  constitute  a  defence  or  counterclaim  ; 
and  if  it  did  not,  in  fact,  allege  a  defence  or  counterclaim,  none 
could  be  proved  under  it  at  the  trial.  The  rule,  with  its  proper 
limitations,  is  a  correct  one,  and  operates  in  the  interests  of  jus- 
tice and  good  faith  ;  but  if  acted  upon  in  the  broad  manner  as  above 


644  CIVIL    REMEDIES. 

recited,  it  would  tend  to  destroy  all  certainty  and  accuracy  in 
pleading-.  If  the  deficiencies  are  such  that  a  motion  is  the  proper 
mode  of  cure,  they  are  necessarily  of  form,  and  not  of  substance  ; 
the  adverse  party  is  not  in  fact  misled ;  and  a  neglect  on  his  part 
to  aj)ply  the  remedy  in  an  early  stage  of  the  cause  ought  to  be 
and  is  a  waiver  of  all  objection,  so  that  the  cause  of  action  or 
defence,  as  the  case  may  be,  can  be  proved,  notwithstanding  the 
ambiguity  and  indefiniteness  of  the  averments. 

§  598.  Adopting  the  rule  in  this  restricted  scope,  there  are 
still  cases  of  doubt  and  of  conflict  in  its  application.  In  some 
answers  a  defect  of  substance  is  plain  ;  the  facts  alleged  clearly 
constitute  no  defence  :  in  others  the  deficiencies  are  as  plainly 
formal ;  the  necessary  facts  are  all  mentioned  ;  no  doubt  can  exist 
as  to  the  actual  intent  and  meaning,  but  still  some  requirements 
as  to  form  and  method  have  not  been  complied  with.  Between 
these  two  extremes  there  are  cases  bordering  upon  the  dividing- 
line,  in  which  it  is  difficult  to  determine  with  certaint}^  whether 
the  defect  is  one  of  form  merely,  or  whether  it  passes  the  limit, 
and  is  one  of  substance.  In  such  instances  we  shall  naturally 
find  a  conflict  of  decision  among  different  judges,  and  we  shall 
even  discover  the  same  court  vacillating,  in  one  case  applying 
the  liberal  doctrine  and  holding  the  objection  waived,  and,  in 
another  not  essentially  different,  enforcing  the  stricter  rule,  pro- 
nouncing the  answer  entirely  bad,  and  wholly  rejecting  it.  In 
some  of  the  decisions  to  which  I  shall  refer,  it  would  seem  that 
able  courts  have  neglected  their  own  precedents,  and  forgotten 
the  rule  imposed  upon  them  by  the  statute,  which  abrogates  the 
inequitable  common-law  doctrine  of  an  interpretation  adverse  to 
the  pleader,  and  requires  a  liberal  construction  with  a  view  to 
substantial  justice  between  the  parties.  It  is  only  by  a  compari- 
son and  analysis  of  these  decisions  that  a  practical  result  can  be 
reached,  and  a  general  principle  deduced ;  and  I  shall  therefore 
cite,  either  in  the  text  or  in  the  notes,  the  leading  cases  which 
have  passed  upon  this  important  question. 

§  5U9.  The  authorities  are  uniform  that  a  mere  defect  of  form, 
as  it  has  been  already  described,  must  be  cured  by  a  motion,  and 
not  by  a  demurrer.  In  an  action  to  foreclose  a  purchase-money 
mortgage  of  land  conveyed  by  the  plaintiff  to  the  defendant,  the 
answer  set  up  covenants  in  the  deed  of  conveyance,  and  a  breach 
of  them  ;  namely,  "  that  the  plaintiff  was  not  seized  of  the  prem- 


DEFECTIVE   ANSWERS.  645 

ises,  as  of  a  good  and  indefeasible  estate  in  fee,"  &c.,  negativing 
all  the  covenants.  To  this  the  plaintiff  replied,  and  instead  of 
averring  "  that  he  was  seized,"  &c.,  said,  "  And  the  plaintiff 
denies  that  at  the  time,  &c.,  he  was  not  seized  in  fee  of  the  said 
premises,"  &c.,  and  in  this  manner  met  all  the  allegations  of  the 
answer.  The  defendant  demurred  for  insufficiency.  It  was  held 
by  the  court  that  "  insufficiency "  as  a  ground  of  demurrer 
implies  that  the  allegations  do  not  constitute  any  defence  or 
denial  to  the  adverse  pleading.  The  insufficiency  relates  to  the 
substance  of  the  averments  as  a  whole,  rather  than  to  the  form  of 
the  expression.  The  reply  in  this  case  was  defective  in  form, 
but  the  substance  thereof  was  good  ;  that  is,  it  stated  a  denial  in 
an  improper  manner,  and  the  remedy  therefor  was  not  by  demurrer, 
but  by  motion  to  render  the  allegations  more  definite  and  certain.^ 
Although  this  decision  was  made  in  reference  to  a  reply,  the 
principle  applies  equally  to  an  answer. 

§  600.  Tliat  all  objections  of  mere  form  to  the  answer  are 
waived  by  a  neglect  to  move,  and  by  going  to  trial  thereon,  is 
sustained  by  numerous  cases  ;  and  some  of  them  apply  the  rule 
to  answers  in  which  the  deficiencies  were  very  considerable,  even 
so  great  as  to  have  rendered  the  pleading  demurrable  in  the 
opinion  of  the  court  pronouncing  the  decision.  In  White  v. 
Spencer,^  which  was  an  action  for  flowing  plaintiff's  lands,  the 
answer  set  up  facts  showing  a  user  and  enjoyment  by  defendant 
of  the  easement  for  more  than  twenty  years,  but  did  not  aver 
that  this  user  was  adverse.  The  plaintiff  replied  a  general 
denial,  and  on  his  objection  all  evidence  in  support  of  the  answer 
was  excluded  at  the  trial.     On  appeal  from  the  judgment  ren- 


1  Flanders  v.  Mc Vickar,  7  Wise.  372,  and  denied  by  tlie  reply.     If  the  allegation 

377.     See,  to  the  same  effect,  Spence  v.  in   tliat  respect   was   too   general   in  its 

Spenee,  17  Wise.  H8,  454  ;  Hart  v.  Craw-  terms,  the  remedy  of  the  plaintiff  was  by 

ford,  41  Ind.  197;  Snowden  v.  Wilas,  19  motion,  under  §   160,  to  compel  the  de- 

Ind.    10;  Fultz  v.  Wycoff,  2-5  Ind.  321;  fendant  to  make  it  more   certain."     See 

Phoenix  v.  Lamb,  29  Iowa,  852,  354  ;  First  also  Stringfellow  v.  Alderson,  12   Ivans. 

Nat.  Bank  of  New  Berlin  v.   Church,  3  112;  Lathrop  v.  Godfrey,  6  N.  Y.  S.  C, 

N.  Y.  S  C.  10.     The  answer  averred  that  96  ;    Hutchings   v.   Castle,  48   Cal.    152  ; 

defendant  "  had  no  knowledge  or  infor-  Jackson  Sharp  Co.   v.  Holland,   14  Flor. 

mation  thereto,"  which  was  held  to  be  an  384,  389  ;  a  fortiori  such  an  answer  cannot 

improper  form  of  denial ;  but  the   plain-  be  objected  to  for  the  first  time  on  ap- 

tiff's  remedy  was  by  motion,  and  the  de-  peal.     Green  v.  Lake   Superior,  &c.  Co., 

feet  had  been  waived.     Seeley  v.  Engell,  46  Cal.  408. 

13  N.  Y.  542,  548,  per  Denio  J.  :  "  The  2  white  v.  Spencer,  14  N.  Y.  217,  249, 

alleged  mistake  was  set  up  in  the  answer,  251. 


646  CIVIL  REMEDIES. 

dered  in  favor  of  the  plaintiff,  the  New  York  Court  of  Appeals 
held  that  the  user  must  be  adverse,  and  that  the  plaintiff  might 
have  successfully  demurred  to  the  answer^  because  an  averment 
of  such  adverse  user  was  omitted  ;  but  that,  by  replying,  and 
going  to  trial,  he  had  waived  the  objection.  Denio,  J.,  said  :  "  I 
am  of  opinion  that  the  plaintiff,  having  treated  the  allegation  in 
the  answer  as  a  sufficient  statement  of  defence  by  replying  to  it, 
and  by  going  to  trial  without  objection,  is  precluded  from  object- 
ing to  evidence  to  sustain  it."  He  cited  cases  showing  that  the 
same  rule  prevailed  under  the  old  system,^  and  added :  "  We 
have  decided,  it  is  true,  that  it  is  the  duty  of  the  judge  on  the 
trial  to  reject  evidence  offered  in  support  of  immaterial  issues.^ 
But  an  issue  is  not  immaterial,  within  the  meaning  of  this  rule, 
on  account  of  the  omission  of  some  averment  in  a  pleading  which 
is  essential  to  the  full  legal  idea  of  the  claim  or  defence  which  is 
attempted  to  be  set  up.  If  the  court  can  see,  as  in  this  case,  what 
the  matter  really  attempted  to  he  pleaded  ^s,  the  issue  is  not  imma- 
terial, though  it  may  be  defectively  stated."  In  this  last  sen- 
tence Mr.  Justice  Denio  has  given  a  very  clear  and  accurate 
description  of  7ne7'e  defects  inform,  which  are  waived  by  a  neglect 
to  correct  them  by  motion.  Whether  the  principle  was  properly 
applied  to  the  case  before  him,  is,  as  it  seems  to  me,  more  than 
questionable.  The  answer  did  not  attempt  to  state  an  adverse 
user,  and  simply  fail  to  state  it  with  accuracy ;  it  omitted  any 
such  averment  entirely  ;  it,  therefore,  set  up  no  defence  at  all. 
When  it  is  said  that,  if  the  court  can  plainly  see  what  the  matter 
really  attempted  to  be  pleaded  is,  the  deficiency  is  formal,  it  is 
not  intended  that  the  court  may  be  able,  from  their  knowledge  as 
lawyers  and  their  experience  as  judges,  to  guess  with  reasonable 
certainty  what  the  pleader  designed  ;  they  must  be  able  to  gather 
from  the  legal  import  of  the  facts  which  are  alleged  —  although 
improperly  alleged  —  the  nature  of  the  defence  relied  on  ;  in  other 
words,  the  substantial  facts  which  constitute  that  defence  must,  in 
some  manner,  appear  on  the  record.  A  defence  of  fraud  could 
hardly  be  considered  sufficient  at  the  trial,  from  which  all  averments 
of  the  scienter  had  been  omitted ;  and  yet  a  fact  was  here  Avholly 
left  out  of  the  answer  which  was  as  essential  in  making  up  the 

1  Meyer  r.  McLean,  1  Johns.  509;  2  id.  183;    Reynolds   v.  Lounsbury,  6   Hill, 
534. 

2  Corning  v.  Corning,  6  N.  Y.  97. 


DEFECTIVE    ANSWERS. 


647 


defence  as  the  guilty  knowledge  is  to  constitute  the  fraud. 
Although  the  reasoning  of  Mr.  Justice  Denio  is  admirable  in  its 
definition  of  the  general  rule,  his  conclusion  cannot  be  reconciled 
with  some  subsequent  decisions  of  the  same  court. 

§  601.  In  Simmons  v.  Sisson,  the  subject  was  discussed  at 
large  both  upon  principle  and  upon  authority. ^  The  reasoning 
of  the  court,  and  the  decision  upon  it,  are,  in  the  main,  in  perfect 
accord  with  the  spirit  and  letter  of  the  codes,  and  well  express 
the  liberal  design  of  the  reformed  procedure.     The  only  criticism 


1  Simmons  v.  Sisson,  26  N.  Y.  264, 
271.  The  action  was  brought  by  the 
plaintiff,  treasurer  of  a  corporation, 
against  tiie  defendants,  as  stockholders. 
The  complaint  alleged  that  the  plaintiff 
had,  by  order  of  the  directors,  advanced 
and  expended  a  certain  sum  more  than  he 
had  received  from  its  funds,  and  that  the 
corporation  was  indebted  to  him  therefor. 
The  answer  contained  two  defences, — 
1.  It  denied  that  tlie  corporation  was 
indebted  to  the  plaintiff  in  said  sum, 
or  in  any  other  sum ;  2.  It  alleged 
that  the  plaintiff  had  been  directed  by 
the  corporation  to  expend  the  earnings 
thereof,  and  no  more ;  that  with  knowl- 
edge of  such  direction,  and  of  the  amount 
of  such  earnings,  he  had  expended  more 
than  said  amount,  contrary  to  the  wislies 
and  instructions  of  the  corporation,  and 
in  his  own  wrong.  On  the  trial,  the 
referee  held  that  this  ans\ver  admitted 
the  allegations  of  the  complaint,  that  the 
plaintiff  had  expended  the  sum  mentioned 
over  and  above  the  earnings,  and  had 
done  this  by  order  of  tlie  directors.  On 
appeal  from  the  judgment  rendered  in 
favor  of  the  plaintiff,  Selden  J.,  who  de- 
livered the  opinion  of  the  court,  declared 
that  the  first  defence  was  the  exact  equiv- 
alent of  nil  debet  at  the  common  law,  and 
was  a  good  general  denial  under  the 
code,  and  then  proceeded  as  follows : 
"  But  whether  the  preceding  position  is 
correct  or  not,  it  was  too  late  to  object  at 
the  close  of  the  trial  that  this  division  of 
the  answer  did  not  put  tlie  fact  of  indebt- 
edness in  issue.  Under  the  former  sys- 
tem of  pleading,  nil  dibet  to  an  action  of 
debt  on  bond  or  judgment  was  bad  on 
general  demurrer;  but  if,  instead  of  de- 
murring, the  plaintiff  went  to  trial  on  that 
issue,  it  was  always  held  to  put  him  to 


proof  of  his  cause  of  action.  Starkie  on 
Ev.  140 :  2  Phil.  Ev.  Cow.  &  H.'s  ed. 
168;  1  Ch.  Pi.  (Springfield  ed.,  1844) 
433  ;  Meyer  v.  McLean,  2  Johns.  183  ; 
Rush  V.  Cobbett,  2  Johns.  Cas.  256,  per 
Radcliff  J.  ...  I  think,  therefore,  that, 
under  the  strictest  rules  of  special  plead- 
ing, the  first  defence  of  the  answer,  if  oot 
objected  to  as  insufficient  before  trial  by 
demurrer,  would  always  have  been  held 
sufficient,  on  tlie  trial,  to  put  in  issue  the 
cause  of  action ;  and  that,  in  view  of  the  pro- 
visions of  the  code  in  reference  to  the  con- 
struction of  pleadings,  the  referee  erred  in 
holding  that  the  defendants  had  admitted 
the  indebtedness  of  the  corporation,  when 
they  expressly  denied  it.  There  are,  I 
think,  much  stronger  reasons  now  for  hold- 
ing such  an  answer  sufficient,  on  the  trial, 
to  put  the  question  of  indebtedness  in  issue 
than  there  were  when  the  decisions  were 
made  to  which  I  have  referred.  Parties 
are  now  provided  with  short  and  cheap 
methods  by  motion  to  compel  defective 
pleadings  to  be  amended,  stricken  out,  or 
that  judgment  be  pronounced  upon  them 
summarily  ;  and  they  can  have  no  excuse 
for  reserving  such  objections  until  the 
close  of  the  trial.  I  am  of  opinion,  that, 
when  that  course  is  taken,  the  party  must 
stand  upon  the  pleadings  and  evidence 
together ;  that  the  judgment  must  be  such 
as  the  whole  case,  pleadings  and  evidence 
united,  demands ;  and  that  it  would  be 
the  duty  of  the  court,  under  §  176,  to  dis- 
regard defects  in  the  pleadings  not  before 
noticed,  or  to  order  the  required  amend- 
ments under  §§  170,  173.  If,  however, 
the  case  should  be  such  as  to  satisfy  tiie 
court  that  neither  party  had  been  misled 
by  defects  in  the  pleadings,  it  should  be 
disposed  of  under  §  169." 


648  CIVIL    REMEDIES. 

which  must  be  made  upon  the  opinion  —  and  it  is  a  most  impor- 
tant one  —  is  upon  that  portion  which  draws  analogies  from  the 
common-law  S3'stem.  Certainly  none  of  the  special  common-law 
rules  wliich  distinguished  the  cases  in  which  a  particular  form  of 
general  issue  could  be  used,  and  which  defined  the  office  of  a 
demurrer  either  general  or  special  as  applied  to  such  pleas,  are 
preserved ;  they  have  all  been  swept  away,  and  any  trace  of 
them  only  serves  to  obscure  the  clear  principles  which  find  an 
expression  in  the  codes. ^ 

§  602.  In  an  action  uj)on  a  promissory  note,  the  defendant,  an 
accommodation-maker,  pleaded  the  defence  of  payment  by  the 
payee,  and  on  the  trial  proved,  under  objection,  a  delivery  of 
lumber  by  said  payee  to  the  plaintiff,  and  the  receipt  thereof  by 
him  in  full  satisfaction  of  the  demand.  The  New  York  Court  of 
Appeals,  after  holding  that  the  answer  was  good,  and  that  under 
a  defence  of  payment  the  defendant  may  prove  a  payment  in 
cash  or  in  any  other  manner,  added :  "If  the  particulars  of  the 
transaction  between  the  payee  and  the  plaintiff  were  not  suffi- 
ciently disclosed  by  the  answer,  the  plaintiff's  remedy  was  a 
motion  under  §  160  of  the  code.  He  could  not  accept  the  plea, 
and  go  to  trial  upon  it,  and  then  interpose  the  objection  for  the 
first  time  that  it  was  not  sufficiently  descriptive  of  the  particulars 
relied  on  as  constituting  payment."  ^  In  Chamberlain  v.  Pains- 
ville,  &c.  R.  R.,'^  the  Supreme  Court  of  Ohio  applied  the  rule 
sanctioned  by  Simmons  v.  Sisson  to  an  answer  equall}'-  faulty 
with  the  one  in  the  latter  case  in  its  denial  of  legal  conclusions 
rather  than  of  issuable  facts.  The  action  being  upon  a  promis- 
sory note,  the  answer  was,  "That  the  said  note  in  said  petition 
mentioned  was  and  is  wholly  without  consideration,  and  void." 
No  motion  was  made  to  compel  more  specific  averments,  and  the 
parties  went  to  trial.  The  court,  after  saying  that  the  defendant 
might  have  been  required  to  make  the  defence  more  definite  and 

1  Even   though  the  general  issue  nil  facts  alleged  by  the  plaintiff,  and  not  the 

debet,  when  improperly  pleaded  in   debt  facts  themselves.     The  only  proper  mode 

upon  a  specialty,  might  be  reached  by  a  to  correct  it  would  have  been  a  motion. 

general  demurrer,  it  is  very  clear  that  the  All  that  was  said  of  its  resemblance  to 

Jirst  defence  in  tiie  case  above  mentioned  nil  debet,  was  utterly  outside  of  the  ques- 

was  not  demurmble  upon  any  true  construe-  lions  before  the  court, 

tion  of  the  provisions  found  in  the  codes.  -  Farmers'  Bank  v.  Sherman,  .33  N.  Y. 

It  was  an  utti'mpled  denial,  and  it  actually  69,  79. 

contained  denials  :  its  real  defect  was  that  ^  Chamberlain  v.  Painsville,  &c.  R.  R., 

it  denied  the  leyal  conclusion   from   the  15  Ohio  St.  225,  251. 


DEFECTIVE   ANSWERS.  649 

certain,  added :  "  Under  the  broad  issue  thus  chosen  by  the  par- 
ties, any  evidence  would  have  been  admissible  which  tended  to 
impeach  or  sustain  the  consideration  of  the  note."  The  answers 
in  this  case  and  in  Simmons  v.  Sisson  closely  resembled  each 
other  in  their  defects  and  in  their  violation  of  the  principles  of 
pleading  introduced  by  the  codes.  In  both,  the  defendants 
designed  to  raise  an  issue  of  fact  which  would  go  to  the  whole 
cause  of  action.  The  defect  was  not  a  misconception  of  the 
defence,  nor  a  reliance  on  matters  which  constituted  no  defence  ; 
it  was  only  an  imperfect  manner  of  stating  a  defence  which  was 
in  itself  perfect.  Under  a  true  construction  of  the  codes,  neither 
of  these  answers  was  demurrable.  If  the  plain  distinction  estab- 
lished by  the  statutes  is  to  be  preserved,  it  is  clear  that  a  motion 
to  make  the  pleading  more  definite  and  certain  is  the  only  mode 
of  curing  defects  of  this  kind.  I  am  aware  that  demurrers  have 
been  sustained  to  such  defences,  on  the  ground  that  they  were 
conclusions  of  law,  and  not  allegations  of  fact ;  but  the  courts 
have  sometimes  overlooked  the  distinctions  in  this  respect  created 
by  the  legislature. 

§  603.  I  repeat,  the  doctrine  would  be  an  anomaly  that  an 
answer  may  be  demurrable  because  it  fails  to  set  up  any  defence 
or  counterclaim,  and  still  become  a  sufficient  pleading  so  as  to 
admit  proof  of  the  defence  or  counterclaim  from  the  plaintiff's 
neglect  to  demur  or  to  object  in  some  other  manner  prior  to  the 
trial.  This  proposition  has,  nevertheless,  been  expressly  sanc- 
tioned by  the  courts  in  certain  cases,  although  it  is  not  supported 
by  the  weight  of  judicial  authority,  and  is  certainly  not  sustained 
by  principle.  Hoback  v.  Powell^  is  an  example  of  these  de- 
cisions. This  case  goes  farther  than  any  of  those  before  cited, 
and  certainly  farther  than  the  rule  invoked  will  warrant.  A 
counterclaim  is  an  independent  cause  of  action,  in  which  the 

1  Roback  w.  Powell,  36  Ind.  515,  516.  trial.  All  evidence  in  support  of  the  coun- 

Tlie  action  was  upon  an  injunction  bond  terclaim  having  been  excluded,  the  Su- 

given  by  Mrs.  Roback.     The  injunction  preme   Court  of  Indiana  held,  upon  the 

had  restrained  the  plaintiff  from  taking  defendant's  appeal,  that  as  the  action  was 

down  a  house  which  stood  upon  her  land,  on  a  contract,  and  the  counterclaim  was 

She  pleaded,  1,  a  general  denial,  and,  2,  as  for  an  alleged  tort,  the  latter  was  in  every 

a  counterclaim,  that  Powell  entered  upon  way  improper,  and  could  not  be  sustained 

her  land  in  her  possession,  and  tore  down  had   it   been   properly   objected   to;  but 

her  house,  and  carried  the  same  away,  to  that  all  objection  to  it  had  been  waived 

her  damage  $2,000,  for   which  sum  she  by  the  replying  and  going  to  trial,  and 

demanded  judgment.      The    plaintiff  re-  therefore    the    evidence    in    its    support 

plied  by  a  general  denial,  and  went  to  should  have  been  received. 


650 


CIVIL   REMEDIES. 


defendant  becomes  the  actor,  and  assumes  the  character  of  a 
plaintiff.  The  occasions  and  purposes  in  and  for  which  it  may 
be  set  up  are  carefully  prescribed,  and  it  was  conceded  that  this 
answer  did  not  come  within  the  statutory  definition.  Jf  the 
decision  be  correct,  on  the  same  principle  it  ought  to  be  held  that 
a  defendant  waives  all  objection  to  the  sufficiency  of  a  complaint 
or  petition  which  does  not  state  facts  constituting  a  cause  of 
action,  when  he  answers  it  and  goes  to  trial. 

§  604.  Notwithstanding  this  array  of  cases  in  which  the  liberal 
rule  of  construing  the  pleadings  has  been  sometimes  pushed  even 
to  an  unwarrantable  extreme,  there  are  others  in  which  the 
courts  have  entirely  disregarded  the  doctrine,  have  overlooked 
their  own  precedents,  and  have  gone  to  as  great  a  length  in  the 
opposite  "direction.  In  Manning  v.  Tyler,  an  action  was  brought 
upon  a  promissory  note  against  R.  as  maker,  and  T.  as  indorser.^ 
Although  the  answer  of  the  defendants  was  held  to  be  frivolous, 
yet  the  dissenting  opinion  of  Mr.  Justice  Denio,  rather  than  that 
of  the  court,  seems  to  express  the  rule  established  by  the  code. 
The  deficiencies  in  this  answer  were  certainlv  no  neater  than 


1  Manning  v.  Tyler,  21  N.  Y.  567.  The 
answer  set  up  usury  in  the  following 
manner :  Tliat,  about  six  months  before 
the  date  of  the  note  in  suit,  R.  made  a 
note  at  three  months,  and  T.  indorsed 
the  same  for  his  accommodation,  which 
was  made  for  the  purpose  of  enabling  R. 
to  raise  money  thereon ;  that  R.  applied 
to  the  plaintiff  for  a  loan  thereon,  who, 
thereupon,  did  loan  R.  the  said  money 
thereon  at  a  greater  rate  of  interest  than 
seven  per  cent  per  annum  ;  that  said 
note  was  renewed  from  time  to  time 
[stating  when  and  how],  and  that,  at  each 
of  said  renewals,  the  plaintiff  received, 
and  the  defendants  agreed  to  pay,  a 
greater  rate  of  interest  tlian  at  the  rate 
of  seven  per  cent  per  annum ;  that  all 
of  these  transactions  were  at  the  city  of 
Syracuse  ;  wherefore  the  defendants  in- 
sist that  the  note  mentioned  in  the  com- 
jilaint  [which  the  answer  shows  to  be  the 
last  in  the  series]  is  usurious  and  void. 
The  plaintiff's  motion  for  judgment,  on 
account  of  the  frivolousness  of  this  answer, 
being  granted,  the  defendants  appealed  to 
the  Court  of  Appeals,  from  whose  opinion 
the  following  extract  is   taken :    "  That 


the  answer  in  this  case  is  bad  within  all 
the  rules  of  pleading  heretofore  recog- 
nized in  the  courts,  cannot,  I  think,  be 
questioned.  It  consists,  in  effect,  of 
nothing  more  than  a  general  averment 
that  the  note  on  which  the  suit  is  brought 
is  void  for  usury.  It  does  not  aver  wliat 
the  usurious  agreement  was,  between 
wliom  it  was  made,  the  quantum  of 
usurious  interest  that  was  agreed  upon 
and  received,  nor  that  the  agreement  was 
intentionally  usurious  and  corrupt.  The 
old  rule  of  pleading  required  all  this  par- 
ticularity." It  was  further  said,  that 
although  the  plaintiff  might  have  moved 
to  make  the  answer  more  certain  and 
definite,  yet,  as  the  answer  presented  no 
defence  at  all,  he  was  not  obliged  to  re- 
sort to  that  remedy.  Denio  J.  dissented 
from  this  judgment,  holding  that  the  an- 
swer was  simply  defective  in  omitting 
allegations  ;  that  it  set  up  a  good  defence 
in  an  imperfect  manner,  and  tlie  remedy 
was  therefore  by  motion.  See  also  Gas- 
ton V.  McLeran,  3  Oreg.  389,  391 ;  Taggart 
V.  Risley,  3  Oreg.  300 ;  Freitag  v.  Burke, 
45Ind."38,  40. 


DEFECTIVE    ANSWERS.  651 

those  in  other  pleadings  to  which  the  liberal  mode  of  construc- 
tion had  been  applied  by  the  same  court.  The  pleader  did 
allege  something  more  tlian  the  broad  conclusion  that  the  note 
was  usurious,  and  the  criticism  of  the  court  in  this  respect  was 
without  foundation  in  fact :  he  detailed  the  issuable  facts  with 
such  minuteness  and  certainty,  that  no  one  could  be  misled  as  to 
the  exact  nature  of  the  defence.  The  narrative  was  undoubtedly 
incomplete,  and  it  should  have  been  perfected  upon  the  plaintiff's 
motion  ;  but  this  is  all  that  can  be  objected  to  it.  The  court 
may  have  been  unconsciously  influenced  in  their  decision  by  a 
feeling  of  distaste  for  the  defence  of  usury,  and  thus  led  to  apply 
a  stricter  rule  of  construction  than  they  would  have  enforced  in 
respect  to  other  defences. 

§  605.  The  case  of  Lefler  v.  Field  ^  is  in  yet  stronger  contrast 
with  the  general  course  of  authorities,  and  with  the  express  re- 
quirement of  the  codes  that  the  pleadings  must  be  construed 
liberally  with  a  view  to  substantial  justice  between  the  parties, 
and  not  adversely  to  the  pleader.  The  action  was  for  the  price 
of  barley  bargained  and  sold.  The  answer  set  up  that  the  barley 
was  contracted  for  b}^  an  agent  of  the  defendants,  who  agreed  to 
buy  it  if  it  was  good  and  merchantable  ;  that  the  plaintiff  repre- 
sented said  barley  to  be  a  good,  first  quality,  merchantable 
article  ;  that  the  agent  relied  on  such  representations  ;  that  the 
barley  was  not  merchantable,  which  fact  was  known  to  the 
plaintiff,  and  therefore  the  defendants  refused  to  accept  the  same. 
No  demurrer  was  interposed,  nor  motion  made  ;  and  the  parties 
went  to  trial  on  the  pleadings  as  they  stood.  The  Court  of 
Appeals  held  that  no  evidence  was  admissible  to  establish  the 
defence  ;  that  the  answer  did  not  allege  a  defence  of  fraud,  since 
it  omitted  to  state  two  necessary  elements  thereof  ;  (1)  that  the 
plaintiff  made  the  representation  with  the  intent  to  deceive,  and 
(2)  that  the  defendants  or  their  agent  were  in  fact  deceived. 

§  606.  When  two  or  more  defendants  are  sued  and  unite  in 
one  responsive  pleading,  it  must  be  good  as  to  each  and  all  of 
these  parties,  or  it  will  be  wholly  bad.  This  is  the  rule  which 
prevails  almost  universally.  Thus,  if  the  defendants  join  in  an 
answer  which  on  demurrer  proves  to  be  insufficient  as  to  one,  it 
will  be  adjudged  bad  as  to  all ;  but  the  result  will,  of  course, 

-  Lefler  v.  Field,  52  N.  Y.  621.     Compare  Hutchings  v.  Castle,  48  Cal.  152. 


652  CIVIL   REMEDIES. 

be  otherwise  if  they  plead  the  same  answer  separately. ^  On  the 
same  principle,  if  two  or  more  defendants  nnite  in  a  demurrer  to 
the  complaint  or  petition,  and  a  good  cause  of  action  is  stated 
against  one  or  some  of  them,  the  demurrer  will  be  wholly  over- 
ruled.2  The  rule  is  extended  by  analogy  to  pleadings  containing 
two  or  more  separate  defences  or  causes  of  action.  If  a  demurrer 
is  interposed  to  an  entire  answer  containing  two  or  more  separate 
defences,  or  to  an  entire  complaint  containing  two  or  more  causes 
of  action,  it  will  be  overruled  if  there  is  one  good  defence  or  one 
good  cause  of  action.^  In  an  action  for  a  joint  and  several  tort 
against  several  defendants,  where  the  answer  of  one  is  a  com- 
plete justification  of  the  alleged  wrong  as  to  all,  and  the  others 
either  suffer  a  default  or  plead  different  defences,  if  the  issues 
raised  by  this  answer  are  found  against  the  plaintiff,  the  verdict 
will  operate  for  the  benefit  of  all  the  defendants,  and  he  cannot 
recover  a  judgment  against  those  even  who  made  default.* 

§  607.  It  was  an  inflexible  rule  under  the  common-law  system 
that  every  plea  in  bar  must  go  to  the  whole  cause  of  action,  and 
must  be  an  entire  answer  thereto  on  the  record :  with  pleas  in 
abatement  the  rule  was  different,  for  they  did  not  purport  to 
answer  the  cause  of  action.  The  spreading  of  a  partial  defence 
upon  the  record  was  unknown.  Whenever  such  defences  were 
to  be  relied  upon,  —  as,  for  example,  mitigating  circumstances,  — 
they  were  either  proved  under  the  general  issue,  or  under  a 
special  plea  setting  up  a  complete  defence  which  the  pleader 
knew  did  not  exist.  The  code  has  certainly  abolished  this  doc- 
trine and  the  practice  based  upon  it.  Several  features  of  the 
new  procedure  are  utterly  inconsistent  with  it.  In  the  first 
place,  the  general  or  special  denials  of  the  code  are  not  so  broad 
as  the  general  issues  of  the  common  law  most  in  use  had  become ; 

1  Morton  v.  Morton,  10  Iowa,  58.  Tlie  action  was  for  taking  and  converting 

-  McGonigal  v.  Colter,  32  Wise.  614;  chattels.    All  the  defendants  except  two 

Webster  v.  Tibbits,  19  Wise.  438.  united  in  a  general  denial.     One,  McG., 

3  Jeffersonville,  &c.  R.  R.  v.  Vancant,  set  up  another  action  pending.     The  de- 

40  Ind.  233  ;  McPhail  v.  Hyatt,  29  Iowa,  fendant  C.  alone  justified  as  sheriflT  under 

137 ;  Modlin   v.  North  West.   T.  Co.,  48  an  execution  against  one  II.  D.  W.,  al- 

Ind.   492  ;    Excelsior     Draining    Co.    v.  leging  that  the  goods  were  tiie  property 

Brown,  47  Ind.  19;  Towell  v.  Pence,  47  of  said  H.  D.  W.     On  the  trial,  this  justi- 

Ind.  304 ;  Davidson  v.  King,  47  Ind.  372 ;  fication  was  proved,  and  it  was  held  to 

Washington  Town'p.  v.  Bonney,  4.5  Ind.  enure  for  the  benefit  of  all  the  defendants. 

77  ;  Silvers   v.  Junction  R.  R.,  43  Ind.  See  also,  to  the   same  eflect,   Devyr   i;. 

435,  442-445.  Schaefer,  55  N.  Y.  44G. 

<  Williams  v.  McGrade,  13  Minn.  46. 


PARTIAL   DEFENCES.  653 

and,  as  will  be  particularly  shown  in  the  following  section,  they 
admit  of  no  evidence  not  in  direct  answer  to  the  plaintiif 's  alle- 
gations. In  the  second  place,  the  verification  of  pleadings  in- 
troduced by  the  codes  cuts  off  all  averment  of  fictitious  defences. 
In  the  third  place,  the  statute  expressly  authorizes  the  defendant 
to  set  forth  "  as  many  defences  as  he  may  have  ; "  and  this  has 
been  very  properly  construed  as  a  direct  permission,  and  even 
requirement,  to  plead  partial  as  well  as  complete  defences.  Not- 
withstanding this  express  statutory  provision,  there  has  been 
some  conflict  of  opinion  among  the  courts  in  respect  to  the  plead- 
ing of  mitigating  facts  and  circumstances.  Certain  judges  have 
found  it  impossible  to  forget  the  technical  methods  of  the  old 
procedure,  and  have  seemed  determined  to  treat  them  as  still 
existing  in  full  force  and  effect ;  while  others  have  readily 
adopted  the  sj^irit  as  well  as  the  letter  of  the  reformed  system. 
I  shall,  therefore,  postpone  the  discussion  of  this  particular  sub- 
ject —  the  pleading  of  mitigating  circumstances  —  until  the 
sections  are  reached  which  treat  of  the  "  general  denial  "  and  of 
"  new  matter." 

§  608.  While  partial  defences  are  to  be  pleaded,  it  is  well  set- 
tled that  they  must  be  pleaded  as  such.  If  a  defence  is  set  up  as 
an  answer  to  the  whole  cause  of  action,  while  it  is  in  fact  only  a 
partial  one,  and  even  though  it  would  be  admissible  as  such  if 
properly  stated  on  the  record,  it  will  be  bad  on  demurrer :  the 
facts  alleged  will  not  constitute  a  "  defence  ;  "  which  word,  when 
thus  used  alone,  imports  a  complete  defence.  The  practical  result 
of  this  doctrine  is,  simply,  that  the  pleader  must  be  careful  to 
designate  the  defence  as  partial ;  he  must  not  content  himself 
with  simi^ly  averring  the  facts  as  in  an  ordinary  case,  as  if  they 
constituted  a  full  answer  to  the  cause  of  action,  but  he  must 
expressly  state  that  the  defence  is  partial.  In  the  absence  of 
such  statement,  it  will  be  assumed  that  he  intended  the  defence 
to  be  complete.^ 

*  Fitzsimmons  v.  City  Fire  Ins.  Co.,  mons  v.  City  Fire  Ins.  Co.,  supra,  it  was 

18  "Wise.  23-1 ;  Traster  v.  Snelson's  Ad-  said  by  Cole  J.,  at  p.  240  :  "  Tlie  appellant 

ministrator,  29  Ind.  96;  Sayres  f.  Link-  contends  that,  if  this  answer  is  not  good  as 

hart,  2.5  Ind.  145 ;  Conger  v.  Parker,  29  a  total  defence,  it  is  good  as  a  partial  de- 

Ind.  380;  Stone  v.  Lewman,  28  Ind.  97;  fence  to  the  action.     The  difficulty  with 

Sanders  v.  Sanders,  39  Ind.  207 ;  Yancy  this  position  is  that  this  answer  professes 

V.  Teter,  39  Ind.  305 ;  Bouslog  v.  Garrett,  and  assumes  to  answer  the  entire  cause 

89  Ind.  338 ;   Summers  v.   Vaughan,  35  of  action.     It  is  not  relied  on  as  a  partial 

Ind.   323,   and  cases   cited.     In  Fitzsim-  but  as  a  complete  defence,  and  we  have 


654  CIVIL   REMEDIES. 

§  609.  This  rule  seems  to  be  well  established,  but  it  is  certainly 
one  which  may  often  work  injustice.  It  is  a  remnant  of  the  old 
system,  and  does  not  harmonize  with  the  central  design  of  the 
new,  which  is  to  elicit  the  truth  and  to  decide  controversies  upon 
all  the  actual  facts.  When  the  defendant  has  set  up  a  defence 
as  if  to  the  entire  cause  of  action,  which  is,  however,  only  par- 
tial, and  when,  if  described  as  partial,  it  would  have  been  per- 
fectly regular,  the  plaintiff  could  not  b^  prejudiced  by  allowing  it 
to  stand  for  what  it  is  worth  as  a  partial  defence.  He  knows 
that  it  is,  in  fact,  partial,  for  the  very  objection  assumes  that  knowl- 
edge. If  accurately  named,  he  would  be  obliged  to  meet  and 
answer  it  on  the  trial ;  and  he  would  only  be  compelled  to  make 
the  same  preparation  if  it  were  suffered  to  remain  on  the  record, 
and  to  fulfil  its  intended  purpose.  In  short,  the  plaintiff  could 
not  be  misled  by  such  a  proceeding ;  and  to  strike  out  the  plead- 
ing altogether  would,  if  its  allegations  were  true,  be  depriving 
the  defendant  of  certain  relief  to  which  he  was  in  justice  entitled. 
I  repeat,  the  rule  is  nothing  but  a  remnant  of  the  ancient  tech- 
nicality, the  old  devotion  to  external  forms  of  logical  precision 
which  marked  the  common-law  procedure,  and  which  made  it 
any  thing  but  a  practical  means  of  eliciting  and  applying  the 
trutli  in  judicial  controversies. 


SECTION    THIRD. 

THE   DEFENCE   OF   DENIAL. 

§  610.  The  various  species  of  denial  provided  for  in  the  codes 
are  "  general  "  or  "  specific,"  and  positive  or  denial  of  "  knowl- 
edge or  information  of  the  matter  sufficient  to  form  a  belief." 
In  most  of  the  codes,  it  is  expressly  permitted  that  the  denials 

seen  that  for  this  purpose  it  is  insufBcient.  effect,  Adkins  v.  Adkins,  48  Ind.  12,  17  ; 

Now,  under  the  ohl  system,  when  a  plea  Allen  v.  Randolph,  48  Ind.  4'J6  ;  Alvord 

professed  in  its  commencement  to  answer  v.  Essner,  45  Ind.  156;  Curran  v.  Curran, 

the  whole  cause  of  action,  and  afterwards  40  Ind.  473;    Jackson  v.  Foshender,   45 

answered  only  a  part,  the  whole  plea  was  Ind.  305;  Beeson  v.  Howard,  44  Ind.  413, 

bad.     This   rule    was   elementary;    and,  416;  Gulick  f.  Connely,  42  Ind.  134,  13G. 

upon    general   principles,  we  do  not  see  But  this  rule  does  not  extend  to  an  an- 

why  it  is  not  applicable  to  pleadings  under  swer  simply  pleading  a  set-off  less  than 

the  code.     If  a  party  has  a  partial  defence  the  plaintifi"s  demand,  since  a  set-off  ia 

to  an  action,  he  should  set  it  up,  and  rely  not   strictly    a    defence;    Mullendore    v. 

on  it  as  such,  and  not  as  a  complete  and  Scott,  45  Ind.  113;  Dodge  v.  Dunham, 

entire   defence."     See  also,  to  tlie  same  41  Ind.  18G. 


DIFFERENT    KINDS    OF    DENIALS.  655' 

may  be  either  "  general  "  or  "  specific."  In  a  few,  no  provision 
is  in  terms  made  for  the  general  denial,  and  only  those  that  are 
"  specific  "  or  "  special "  are  mentioned.  In  one  or  two,  tlie  lan- 
guage simply  speaks  of  "a  denial."  ^  According  to  a  large 
majority  of  the  codes,  the  denial,  whether  general  or  specific, 
may  be  either  positive,  or  a  denial  of  "  knowledge  or  information 
thereof  sufficient  to  form  a  belief ;  "  but  in  a  very  few  of  them 
the  latter  form  is  omitted.  The  defendant  is  universally  allowed 
to  deny  only  such  allegations  of  the  complaint  or  petition  as  he 
controverts,  and  this  permission  is  usually  given  whether  he 
employs  the  "general"  or  the  "  specific  "  form  of  denial  ;  but  in 
the  latest  revision  of  the  Iowa  Code  (1873),  it  is  said  with  more 
accuracy  that  the  general  denial  musst  be  "  of  gac/i  allegation  of 
the  petition,"  while  the  specific  denial  is  to  be  "  of  each  allegation 
of  the  petition  controverted  by  him." 

§  (311.  In  actual  practice,  the  "general  denial,"  wherever  per- 
mitted, is  only  employed  when  the  defendant  desires  to  put, the 
whole  complaint  or  petition  in  issue,  and  "  specific "  denials 
when  he  wishes  to  take  issue  merely  with  certain  allegations 
thereof.  It  is  very  plain,  that  in  the  former  case  the  "  general 
denial,"  in  its  brief  and  comprehensive  form,  is  as  efficacious  as 
a  particular  traverse  of  each  averment  separately.  Nothing  is 
gained  by  filling  the  record  with  specific  denials,  when  one 
sweeping  denial  of  the  entire  pleading  will  answer  the  same  pur- 
pose and  admit  the  same  proofs.  I  shall  distribute  the  subject- 
matter  of  this  section  under  the  following  heads,  assuming  in  the 
first  instance,  for  convenience  of  the  discussion,  that  the  denial 
is  "positive:  "  I.  The  form  of  the  "general  denial,"  and  of  tlie 
"specific   denials;"  II.  Tlie  nature  of   "specific  denials,"  and 

1  In  Minnesota,  although  tlie  code  is  v.  Purdy,   11   Minn.  401.     On  the  other 

silent  respecting  the  general  denial,  and  hand,  in  North  Carolina,  notwithstanding 

speaks  only  of  "  a  denial  of  each  allega-  tiie  language  of  the  code,  wliich  is  exactly 

tion,"  it  is  settled  by  repeated  decisions  the  same  as  tiiat  in  JSew  York,  expressly 

that   the   ordinary   form   of  the   general  authorizes  the  general  denial,  the  general 

denial  is  a  compliance  with  the  statute,  denial  in  the  ordinary  form,  as  used  in 

and  is  entirely  proper  :  hence  the  general  other  States,  is  held  to  he  a  nullity,  and 

denial  is  in  constant  use  in  tliat  State;  an  answer  containing  it  will  be  struck  out 

and  such,  I  believe,  is  the  practice  in  most  as  sham  :  an  altogether  difierentconstruc- 

of  the  States.     Leyde  v.  Martin,  16  Minn,  tion  is  placed  upon  the  language  of  tlie 

38;   Becker  v.   Sweetzer,   15  Minn.  427,  statute  from  that  given  in  any  other  State. 

434;  Kingsley  v.  Oilman,  12  Minn.  515,  Schelian  v.  Malone,  71  N.   C.  440,  443; 

517  ;  Bond  v.  Corbet,  2  Minn.  248  ;  Cald-  Flack  v.  Dawson,  69  N.  C.  42 ;  Woody  v. 

well  V.  Bruggerman,  4   Minn.  270 ;  Star-  Jordan,  69  N.  C.  189,  195. 
buck  V.  Dunklee,  10  Minn.  173;  Montour 


656  CIVIL   REMEDIES. 

what  issues  they  raise  ;  III.  Allegations  admitted  hj  omitting  to 
deny  ;  IV.  Denials  in  the  form  of  negatives  pregnant ;  V.  Argu- 
mentative denials,  and  specific  defences  equivalent  to  the  general 
denial ;  VI.  General  denial  of  all  allegations  not  otherwise  ad- 
mitted or  explained  ;  VII.  What  allegations  must  be  denied,  — 
issuable  facts,  and  not  conclusions  of  law ;  A^III.  Denials  of 
information  or  belief,  when  proper,  and  their  effect ;  IX.  What 
can  be  proved  under  denials  either  general  or  specific  ;  X.  Some 
special  statutory  rules  in  reference  to  denials. 

§  612.  The  discussion  which  follows,  and  the  practical  rules 
deduced  therefrom,  are  based  in  the  first  place  upon  the  assump- 
tion that  the  denials,  whether  general  or  specific,  are  jjositive  in 
their  nature.  The  conclusions  which  are  reached  apply,  however, 
with  equal  force  and  effect,  to  those  cases  in  which  the  denials 
are  of  information  or  belief.  The  only  object  of  the  latter  form 
is,  that  the  defendant  may  be  enabled  to  put  the  plaintiff's  alle- 
gations in  issue  when  he  is  obliged  to  verify  his  answer,  and 
cannot  do  so  from  his  own  personal  knowledge  :  the  effect  and 
efficacy  of  the  traverse  are  not  diminished  nor  in  any  manner 
altered  by  the  use  of  this  method  when  it  is  properly  employed. 

I.   The  External  form  of  Denials,  General  or  Specific. 

§  613.  Under  the  common-law  system  there  were  several  dis- 
tinct species  of  the  "general  issue  "  and  of  particular  traverses, 
each  appropriate  to  and  only  to  be  used  in  some  one  of  the  differ- 
ent forms  of  action,  or  to  put  in  issue  certain  classes  of  allega- 
tions ;  but  all  these  have  been  abolished  in  tlie  reformed 
procedure.  One  form  of  the  general  denial  is  sufficient  for  all 
actions  and  for  all  issues  ;  and  although  it  may  undergo  slight  and 
unimportant  variations,  it  is  substantially  the  same  in  all  the 
States,  and  in  the  hands  of  all  members  of  the  bar.  The  mate- 
rial averment,  modified  doubtless  in  its  phraseology,  is,  that  the 
defendant  "  denies  each  and  every  allegation  of"  the  complaint  or 
petition."  The  form  in  common  use  is,  "  The  defendant,  for  an- 
swer to  the  complaint  herein,  denies  each  and  every  allegation 
thereof."  ^    It  is  of  course  impossible  to  describe  the  forms  of  any 

1  This  form  is  slightly  varied  in  the    entirely  sufficient;  any  additional  matter 
standard  text-books  upon  pleading,  and  in     would  be  superfluous, 
the  actual  practice  of  the  bar :  but  this  is 


SPECIFIC   DENIALS.  657 

specific  denial.  From  its  very  name  and  nature,  it  is  the  special 
traverse  of  some  particular  averment  found  in  the  plaintiff's 
pleading,  and  must  therefore  depend  to  a  very  great  degree 
upon  the  matter  and  shape  of  the  statement  which  is  thus  con- 
troverted. How  far  it  should  merely  follow  and  negative  the 
exact  language  of  the  allegation  to  which  it  is  directed,  will  be 
considered  under  the  subsequent  head  of  the  section  which 
treats  of  denials  in  the  form  of  a  negative  pregnant.  It  will 
there  be  shown  that  such  an  exact  adherence  to  the  text  of  the 
adverse  averment  may  be  dangerous,  as  the  result  may  be  an 
admission  of  the  substantial  fact  intended  to  be  put  in  issue. 

II.   The  Nature  and  Object  of  Specific  Deniah. 

§  614.  The  object  of  all  denials  is  to  put  in  issue  the  allega- 
tions of  the  complaint  or  petition.  As  will  be  shown  hereafter 
under  the  head  of  the  proofs  which  may  be  admitted  in  support 
of  a  simple  denial,  it  is  only  the  issuable  facts  which  need  to  be 
controverted,  and  which  are  in  fact  controverted,  by  the  defend- 
ant's traverse.  It  frequently,  and  indeed  generally,  happens  that 
the  cause  of  action  depends  upon  the  existence  of  a  succession  or 
group  of  facts.  Each  of  these  must  be  established  in  order  to 
make  out  the  right  of  action,  and  all  are  therefore  "  issuable 
facts."  In  addition  thereto,  the  plaintiff's  pleading  will  often 
contain  other  averments  which  mus-t  be  stated,  but  which  need 
not  be  proved  as  stated,  among  wdiich  are  those  of  time,  place, 
number,  quantity,  value,  and  the  like.  Finally,  it  happens  too 
frequently,  that  besides  the  statements  of  these  strictly  "  issuable 
facts,"  which  are  all  that  the  pleading  should  comprise,  the  plain- 
tiff has  unnecessarily,  and  in  a  certain  sense  improj)erly,  intro- 
duced averments  of  matters  which  are  really  the  details  of 
evidence  from  which  the  existence  of  the  "issuable  facts"  is  to 
be  inferred  by  the  jury  or  the  court.  It  is  not  alwaj^s  easy  to  dis- 
tinguish in  a  complaint  or  petition  between  the  main  conclusions ■ 
of  fact,  —  the  issuable  or  material  facts,  —  all  and  each  of  which 
are  indispensable  to  create  the  right  of  action,  and  the  mere 
details  of  evidence  which  must  be  proved  at  the  trial  in  order  to 
establish  the  essential  "  issuable  facts ; "  and  the  careless  mode 
of  pleading  which  has  grown  up  in  some  States,  contrary  to  the 
true  intent  and  spirit  of  the  reformed  procedure,  results  chiefly 
from  a  disregard  of  the  distinction  here  mentioned,  and  is  shown 

42 


658  CIVIL   REMEDIES. 

in  a  confused  admixture  of  evidentiary  matter,  allegations  of  sub- 
stantial facts,  and  conclusions  of  law,  in  the  same  complaint  or 
petition. 

§  615.  When  the  series  of  issuable  facts  which  would  make  up 
the  plaintiff's  cause  of  action  are  properly  stated,  it  will  fre- 
quently happen,  especially  if  the  pleadings  are  verified,  that  the 
defendant  cannot  deny  them  all.  Some  of  them  may  be  true,  so 
that  an  issue  upon  them  is  impossible.  But  if  one  or  more  are 
not  true,  and  can  therefore  be  controverted,  and  if  the  existence 
of  all  is  indispensable  to  the  right  of  action,  a  denial  of  that  par- 
ticular allegation,  or  of  those  particular  allegations,  may  be  as 
complete  a  defence  as  though  the  entire  series  was  traversed  and 
disproved.  The  forming  such  an  issue  upon  some  one  or  more 
particular  averments  out  of  the  whole  number  contained  in  the 
complaint  or  petition  is  the  legitimate  and  proper  office  of  the 
^'  special  denial,"  and  by  its  use  in  this  manner  an  ample  defence 
may  be  placed  upon  the  record.  A  "  specific  denial  "  is  there- 
fore a  denial  of  some  particular  averment  in  the  complaint  or 
^petition  ;  and  whether  or  not  it  alone  raises  a  material  issue,  and 
constitutes  a  sufficient  defence,  depends  upon  the  question, 
.whether  the  particular  allegation  thus  traversed  is  in  itself  essential 
to  the  maintenance  of  the  cause  of  action.  There  may,  of  course, 
he  several  such  specific  denials  inserted  in  the  same  answer,  directed 
to  distinct  averments  of  the  adverse  pleading,  and  together  consti- 
tuting a  defence  differing  from  that  raised  by  the  "  general  denial  " 
.in  tlie  single  circumstance,  that  by  the  latter  all  the  issuable  facts 
are  j)iit  in  issue,  while  by  the  former  only  a  portion  of  them  are 
controverted.  As  each  specific  denial  is  aimed  at  a  particular 
averment,  it  should  expressly  and  unmistakably  point  out  the 
statement  of  fact  intended  to  be  traversed  ;  it  should  deny  that 
allegation  fully  and  explicitly,  so  that  the  plaintiff  may  be  forced 
•to  establish  it  by  proofs ;  and  it  should  leave  no  doubt  as  to  the 
.matter  .at  which  it  is  aimed,  and  as  to  the  issue  intended  to  be 
made. 

§  616.  The  object  of  this  kind  of  denial,  and  the  rules  which 
govern  its  use,  were  accurately  stated  in  a  recent  case :  "  To 
determine  whether  an  allegation  has  been  properly  denied  or  not, 
we  must  examine  the  answer  to  the  particular  allegation  whibh  it 
is  designed  to  controvert.  If,  taken  by  itself,  an  issue  is  fairly 
made,  and  there  is  no  admission  inconsistent  with  the  answer, 


WHAT   IS    ADMITTED    BY   A    FAILURE   TO    DENY.  659 

the  denial  is  sufficient.  .  .  .  Each  denial  must  be  regarded  as 
applying  to  the  specific  allegation  it  purports  to  answer,  and  not 
as  forming  part  of  an  answer  to  some  other  specific  and  entirely 
independent  allegation."  ^  A  single  case,  an  abstract  of  which  is 
placed  in  the  foot-note,  will  serve  to  illustrate  the  object  and 
effect  of  the  specific  denial.^  As  the  defendant  in  this  action 
could  not  controvert  his  signature  to  the  instrument,  the  pleader 
evidently  supposed  that  it  was  impossible  for  him  to  deny  the 
execution  in  the  answer  since  the  pleadings  were  verified ;  he 
therefore  traversed  but  one  issuable  fact,  —  the  deliver}-.  Suc- 
cess in  this  issue  was  as  complete  a  defence  as  though  the  exe- 
cution had  also  been  disproved.  It  is  plain,  however,  that  the 
"general  denial"  might  have  been  pleaded;  for,  if  the  defence 
was  true,  there  had  never  been  any  execution  or  delivery  of  the 
note  in  the  legal  sense  of  these  terms.^ 

III.  Allegations  admitted  hy  a  Failure  to  Deny. 

§  617.  All  the  codes  provide  that  material  allegations  in  the 
complaint  or  petition,  not  controverted  by  a  general  or  specific 

1  Racouillat  v.  Rene,  32  Cal.  450,  453,  plaintiff's  appeal,  the  court  said :  "  The 
455,  per  Sawyer  J. ;  and  see  Allis  v.  allegation  in  the  answer  that  the  defend- 
Leonard,  46  N.  Y.  688.  ant  never  gave  the  note  to  the  plaintiff  is 

2  Sawyer  v.  Warner,  15  Barb.  282,  a  denial  of  the  allegation  in  the  complaint 
285.  The  complaint,  in  an  action  upon  a  that  the  defendant  made  the  note,  so  far 
promissory  note,  alleged  the  making  of  as  making  includes  delivery ;  and  also  of 
the  note  by  the  defendant,  the  delivery  the  further  allegation,  that  tiie  defendant 
thereof  by  the  defendant  to  the  plaintiff,  delivered  the  note  to  the  plaintiff.  The 
the  present  ownership  of  the  plaintiff,  question  to  be  tried  on  these  allegations 
non-payment,  and  indebtedness  of  the  was,  whether  or  not  the  note  was  delivered 
defendant  thereon  in  the  amount  specified  to  the  plaintiff  as  alleged  by  him.  .  .  . 
therein.  The  answer  merely  denied  that  The  plaintiff  made  out  this  fact  prima 
the  defendant  ever  "  gave  "  the  said  note  facie.  .  .  .  But  the  defendant  was  at 
or  any  other  note  to  the  plaintiff,  and  liberty,  in  support  of  his  side  of  the  issues, 
denied  all  indebtedness.  On  the  trial,  the  independent  of  other  modes,  to  prove 
plaintiff  proved  the  signature  of  the  note  facts  inducing  a  contrary  presumption, 
to  be  in  the  defendant's  handwriting,  and  and,  in  that  way,  overcome  the  presump- 
his  own  possession.  The  body  of  the  in-  tion  from  the  plaintiff's  proof;  and  he 
strument  was  in  the  plaintiff's  handwrit-  was  entitled  to  give  in  evidence  any  facts 
ing.  The  defendant  then  proved  facts  calculated  to  satisfy  the  jury  by  fair  and 
tending  to  show  that  he  never  executed  direct  inference  that  the  note  was  never 
the  instrument  as  a  note,  and  never  de-  delivered  by  him." 

livered  it  to  the  plaintiff,  but  that  he  had  '  See  Higgins  v.  Germaine,  1  Montana, 
some  time  written  and  left  his  name  on  a  230 ;  also  Van  Dyke  v.  Maguire,  57  N.  Y. 
blank  paper,  and  the  plaintiff  had  fraud-  429  (denial  of  value  alone  in  action  for 
ulently  added  the  body  of  the  note  over  labor  and  materials);  Dunning  v.  Rum- 
such  signature.  The  jury  rendered  a  baugh,  36  Iowa,  566,  568  (denial  of  exe- 
verdict  for  the  defendant ;  and,  upon  the  cation  only  in  an  action  on  a  note). 


660  CIVIL   REMEDIES. 

denial,  are  admitted  to  be  true  for  the  purposes  of  the  action. 
It  follows  that  the  plaintiff  need  not  prove  any  material  allega- 
tions so  conceded  to  be  true ;  evidence  in  contradiction  of  them 
cannot  be  received ;  and  a  finding  of  fact  in  opposition  to  such 
admission  will  be  disregarded  or  set  aside  on  appeal. ^  The  im- 
portant question  is,  What  facts  or  allegations  are  "  material "  ? 
The  answer  has  already  been  indicated.  The  allegations  of  the 
"•  issuable  facts  "  mentioned  in  the  last  preceding  subdivision,  and 
described  at  large  in  Chapter  Third,  are  the  material  allegations, 
which  are  admitted  by  a  neglect  to  deny  them.  It  follows  that 
the  two  other  classes  of  averments  found  in  complaints  and  peti- 
tions, viz.,  those  of  time,  place,  quantity,  value,  amount,  and  the 
like,  and  those  of  unnecessary  evidentiary  matter,  or  of  legal 
conclusions,  are  not  thus  admitted.  They  need  not  be  denied, 
and  are  not  the  subject-matter  of  proper  issues  upon  the  plead- 
ings. The  allegations  of  time,  place,  amount,  value,  amount  of 
damages,  and  the  like,  are  not,  except  in  very  special  cases, 
matters  of  substance  so  as  to  require  a  denial  ;  and  they  may,  in 
general,  be  contradicted  or  modified  without  a  denial.  Thus,  in 
actions  of  trover,  trespass,  or  replevin,  it  was  not  necessary  to 
traverse  the  averments  as  to  the  value  of  the  chattels,  and  as  to 
the  amount  of  damages  ;  and  the  same  rule  prevails  in  all  actions 
brought  for  a  similar  purpose  under  the  new  system.^  "  The 
defendant  is  not  bound  to  answer  all  matters  of  evidence  which 
the  plaintiff  chooses  to  allege.  The  office  of  the  complaint  is  to 
aver  the  material,  issuable  facts  which  constitute  the  cause  of 
acti<!»n,  and  not  the  evidence  to  prove  these  facts.  It  is  only 
material  allegations  that  are  admitted  when  not  specifically  con- 
troverted by  the  answer."  ^  "  The  scope  of  the  general  denial  is 
merely  to  put  in  issue  such  averments  of  the  complaint  as  the 
plaintiff  is  bound  to  prove  in  order  to  maintain  Ms  action :  it 
does  not  controvert  redundant  allegations."* 


1  Morton  v.   "Waring's    Heirs,  18    B.  per  Sawyer  J. ;  Siter  v.  Jewett,  33  Cal. 
Mon.    72,  82 ;   Bradbury   v.   Cronise,  46  92. 

Cal.  287  ;  Howard  v.  Throckmorton,  48  *  Adams  Ex.  Co.  v.   Darnell,  31  Ind. 

Cal.  482,  490.     See  also  ch.  3,  sect.  4.  20,  22,  per  Frazer  J. ;  Baker  v.  Kistler,  13 

2  Jenkins  v.  Steanka,  19  Wise.  126.  Ind.  03.     For  an  example  of  immaterial 
8  Racouillat  v.  Kene,  32  Cal.  450,  455,  denial,  see  Newman  v.  Springfield  F.  and 

M.  Ins.  Co.,  17  Minn.  123,  133. 


NEGATIVES    PREGNANT.  661 


IV.  Denials  in  the  Form  of  a  Negative  Pregnant. 

§  618.  Such  a  denial  is  one  pregnant  with  an  admission  of  the 
substantial  fact  which  is  apparently  controverted  ;  or,  in  other 
words,  one  which,  although  in  the  form  of  a  traverse,  really 
admits  the  important  fact  contained  in  the  allegation.  As  an 
illustration  :  If  the  averment  was  that  the  defendant  on  the  first 
day  of  January  made  a  note,  and  the  answer  should  deny  that  the 
defendant  on  the  first  day  of  January  made  the  note,  this  might 
be  construed  as  an  admission  that  he  made  the  note  on  some, 
other  day;  or  if  the  complaint  stated  that  "the  defendant 
wrongfully  and  forcibly  entered  the  plaintiff's  close,"  and  the 
answer  should  deny  "  that  the  defendant  wrongfully  and  forcibly 
entered  the  plaintiff's  close,"  the  fact  of  entering  the  close  might 
be  considered  as  admitted.  Of  course,  a  denial  to  produce  this 
result  must  of  necessity  be  specific  ;  for  the  general  denial  of 
"  each  and  every  allegation  in  the  complaint "  cannot  be  preg- 
nant with  any  admission.  Denials  in  the  form  of  a  negative 
pregnant  arise  (1)  when  the  allegation  is  of  a  single  fact  with 
some  qualifying  or  modifying  circumstance,  and  the  traverse  is 
in  ipsis  verbis^  using  exactly  the  same  language,  and  no  more  ; 
and  (2)  when  the  allegation  is  of  several  distinct  and  separate 
facts  or  occurrences  connected  by  the  copulative  conjunction,  and 
the  traverse  I'd  in  ipsis  verbis  oi  the  same  facts  and  occurrences 
also  connected  by  the  same  conjunction.  In  most  of  the  reported 
decisions,  the  courts  have  held  such  forms  of  denial  to  be  insuffi- 
cient, and  have  declared  that  they  raised  no  issues,  treating  the 
statements  of  the  complaint  or  petition  as  actually  admitted. 
This  was  the  universal  rule  under  the  old  system ;  and  as  it  was 
not  based  upon  any  merely  technical  reasons,  or  doctrine  of  plead- 
ing, the  same  rule  is  properly  followed  under  the  codes. ^ 

§  619.  A  few  examples  will  illustrate  the  nature  of  these 
denials,  and  the  decisions  of  the  courts  thereon.  In  an  action 
upon  a  promissory  note  against  the  indorser,  the  answer,  copying 
the  exact  language  of  the  complaint,  said  :  "  That  whether  or  not, 
upon  the  maturity  of  the  said  note,  the  same  was  duly  presented 
to  the  makers  for  payment,  and  payment  thereof  demanded  and 

1  See  Pottgieser  v.  Dorn,  16  Minn.  204,  209 ;  Lynd  v.  Pickett,  7  Minn.  184,  194 ; 
Dean  v.  Leonard,  9  Minn.  190. 


662  CIVIL   REMEDIES. 

refused,  and  thereupon  said  note  was  duly  protested  for  non-pay- 
ment and  notice  of  such  presentment,  refusal,  and  protest,  given 
to  the  defendant,  the  defendant  has  no  knowledge  or  information 
sufficient  to  form  a  belief."  This  denial  was  pronounced  bad  as 
a  negative  pregnant,  and  was  disregarded. ^  In  an  action  upon  a 
fire  policy  against  the  insurers,  the  defendants  moved  for  leave 
to  file  an  amended  answer.  In  denying  this  motion,  the  court 
said :  "  The  denials  are  all  liable  to  the  objection  that  they  are 
negatives  pregnant.  The  complaint  avers  that  on  a  particular 
day  the  property  was  all  destroyed  by  fire.  The  answer  denies 
this  in  the  very  words  of  the  complaint.  Such  a  denial  is  a  neg- 
ative pregnant  with  the  admission  that  it  may  have  been  de- 
stroyed on  some  other  day,  or  that  a  part  may  have  been  destroyed 
on  the  day  named.  Such  denials  have  always  been  held  insuffi- 
cient." ^  A  complaint  alleging  that  "the  proofs  of  loss  were 
filed  with  the  secretary  of  the  defendant  on  the  31st  of 
March,  1866,"  the  denial  was,  that  the  proofs  were  filed  "  as 
alleged  in  the  complaint.''''  This  was  declared  to  be  pregnant  with 
the  admission  that  they  were  filed  on  another  day  within  the  time 
required.^ 

§  620.  When  a  verified  complaint  contained  many  distinct 
allegations  conjunctively  stated,  and  the  answer  consisted  of 
denials  of  these  averments  in  ipsis  verbis  also  conjunctively 
stated,  following  in  this  manner  the  exact  language  of  the  entire 
complaint,  the  court  ordered  a  judgment  for  the  plaintiff  on  the 
pleadings,  saying :  "  This  mode  of  answering  is  in  violation  of 
the  principles  of  common-law  pleading,  and  not  less  so  of  the 
statute  which  provides  that  the  defendant's  answer  to  a  verified 
complaint  shall  contain  a  specific  denial  of  each  allegation  con- 
troverted, or  a  denial  thereof  according  to  the  defendant's  infor- 
mation and  belief."*  The  complaint  in  an  action  to  recover 
possession  of  chattels  alleged  that  "defendant  unlawfully   and 

1  Youn<j  V.  Catlett,  6  Duer,  437,  443,  '  Schaetzel  v.  Germantown,  &c.  Ins. 
per  Woodruff  J.  Co.,  22  Wise  412.     See  also  Robbins  w. 

2  Baker  I'.  Bailey,  16  Barb.  54 ;  Salin-  Lincoln,  12  Wise.  1.  In  McMurphy  r. 
ger  V.  Lusk,  7  How.  Pr.  430.  See  Brad-  Walker,  20  Minn.  382,  384,  the  complaint 
bury  V.  Cronise,  46  Cal.  287,  where,  the  on  a  note  allejjing  tiiat  it  was  delivered 
complaint  alleging?  that  the  plaintifT  did  on  the  10th  of  September,  1868,  an  answer 
certain  work  and  labor  at  tlie  request  of  stating  that  it  "  was  not  delivered  until 
the  defendant,  an  answer  denying  that  he  after  Sept.  10, 1868,"  was  held  to  raise  no 
performed  such  work  and  labor  at  the  re-  issue. 

quest  of  the  defendant  admitted  the  per-  *  Fish  v.  Redington,  31  Cal.  185,  194. 

formance  of  the  services  by  the  plaintiff. 


NEGATIVES   PREGNANT.  663 

wrongfully  seized  and  took  said  property  into  his  possession  from 
said  plaintiff;  "  and  the  answer  denied  "  that  he  wrongfully  and 
unlawfully  seized  and  took  said  property,"  &c.  This  answer,  it 
was  held,  admitted  the  taking.^  It  is  the  settled  rule  in  Califor- 
nia that  conjunctive  denials,  in  the  very  language  of  conjunctive 
allegations,  raise  no  issues.^ 

§  621.  In  an  action  to  foreclose  a  mortgage  given  to  secure  a 
bond,  the  complaint  alleged  the  execution  of  the  bond  for  $4,000, 
with  a  provision  in  it,  that,  if  default  should  be  made  in  the  pay- 
ment of  interest  for  thirty  days,  the  whole  principal  sum  should 
become  due  at  the  option  of  the  plaintiff ;  and  set  out  the  mort- 
gage, averring  that  it  contained  the  same  provision,  that  interest 
had  been  due  more  than  thirty  days,  and  that  plaintiff  made  his 
election  to  regard  the  whole  principal  as  due.  The  defendant  in 
his  answer  admitted  the  execution  of  the  bond  and  mortgage, 
"but  he  denies  that  the  said  bond  and  mortgage  contained  any 
condition  or  clause  whereby,  in  case  of  a  default  in  pajauent  of 
interest  for  the  s]3ace  of  thirty  days,  the  principal  sum  was  to 
become  due  and  payable  immediately,  as  alleged  in  said  com- 
plaint, as  hy  reference  to  said  mortgage  will  more  fully  apjyear.^'' 
This  defence  was  struck  out  as  frivolous,  the  court  saying: 
"  This  is  a  denial  that  both  of  the  instruments  contained  the 
clause  in  question.  It  is  not  a  denial  that  one  of  them  contained 
it.  The  bond  and  the  mortgage  together  constituted  but  one  in- 
strument. The  latter  refers  to  the  former  as  affording  particular 
evidence  of  the  terms  of  payment.  Such  reference  incorporates 
into  the  mortgage  all  the  terms  and  conditions  of  the  bond.  The 
only  denial  was  of  their  joint  effect.  This  was  an  admission  as 
to  the  bond."  The  defence,  therefore,  did  not  put  in  issue  the 
allegation  of  the  complaint,  that  the  whole  amount  was  due.^ 

§  622.  There  is  not,  however,  an  absolute  unanimity  among 
the  decided  cases.  In  some  instances  the  courts,  avowedly 
rejecting  the  common-law  rule  of  strict  construction,  and  apply- 

1  Woodworth    v.   Ktiowlton,    22    Cal.  3  Kay  r.  Whittaker,  44  N.  Y.  565,  571, 

164.     See  also  Feely  v.  Shirley,  43  Cal.  per  Hunt  J.     The  court  certainly  applied 

369;  Harris  v.  Shontz,  1  Mont.  212,  216;  in  this  case  the  common-law  doctrine,  that 

Toombs  V.  Hornbuckle,  1  Mont.  286.  the  allegations  of  a  pleading  must  be  con- 

'•^  Blankman  v.   Vallejo,   15  Cal.  638  ;  strued  most  strict!}''  against  the  pleader. 

Kuhland  v.  Sedgwick,  17  Cal.  123  ;  Caul-  The  decision  goes  much  farther  than  any 

field  V.  Sanders,  17  Cal.  569;  Landers  v.  of  the  others  cited  above  upon  this  sub- 

Bolton,  26  Cal.   393  ;  Busenius  v.  Coffee,  ject. 
14  Cal.  91. 


664  CIVIL   REMEDIES. 

ing  the  requirement  of  the  codes  that  pleadings  must  be  liberally 
construed  with  a  view  to  substantial  justice,  have  held  that  such 
denials  did  raise  an  issue,  altliough  their  character  as  negatives 
pregnant  was  fully  acknowledged.  It  will  be  seen  from  the  deci- 
sions to  be  cited,  that  no  line  of  distinction  can  be  drawn  which 
separates  them  from  those  which  precede,  and  reconciles  their 
conflicting  results :  different  courts  have  simply  pronounced  in 
an  opposite  manner  upon  substantially  the  same  facts  or  circum- 
stances. A  petition  stated  the  cause  of  action  in  the  following 
manner  :  "Plaintiff  claims  of  defendant  sixty-four  dollars,  and  for 
a  cause  of  action  states  that  on  the  15th  day  of  October,  1867,  the 
defendant  set  fire  to  prairie  land,  and  allowed  the  fire  to  escape 
from  his  control,  wdiereby  said  fire  spread  to  and  consumed  six- 
teen tons  of  hay,  the  property  of  the  plaintiff,  to  his  damage," 
&c.  The  answer  denied  "  that  defendant  did  on  the  15th  day  of 
October,  1867,  set  fire  to  prairie  land  by  which  the  hay  of  the 
plaintiff  was  consumed."  The  Supreme  Court  of  Iowa,  in  pro- 
nouncing judgment,  said  that  defendant's  denial  "  was  perfectly 
consistent  with  his  doing  the  act  on  the  14th  or  the  16th,  or  on 
any  other  day  than  the  15th."  Yet,  in  view  of  the  rule  of  lib- 
eral construction  imposed  upon  the  judges  by  the  code,  it  held 
that  this  answer,  though  conceded  to  be  a  negative  pregnant,  was 
not  a  nullity,  but  raised  an  issue.^  The  Supreme  Court  of  Mis- 
souri applied  a  like  lenient  method  in  an  action  upon  a  bill  of 
exchange  executed  by  the  National  Insurance  Company.  The 
petition  alleged  that  the  company,  "  by  its  draft  in  writing  signed 
by  its  secretary,"  made  the  obligation  ;  and  the  answer  in  turn 
denied  "  that  the  company,  by  its  draft  in  writing  signed  by  its 
secretary,"  made  the  obligation.  This  answer,  it  was  held, 
raised  an  issue.  Construing  it  freely  and  favorably  to  the  pleader, 
it  could  not  be  treated  as  a  nullity,  although  its  character  as  a 
negative  pregnant  was  undoubted.^ 

§  623.  If  the  requirements  of  the  codes  as  to  the  mode  of  form- 
ing issues  by  specific  denials  are  not  to  be  a  dead  letter,  the  doc- 
taine  supported  by  the  series  of  decisions  first  above  cited  is 
clearly  correct,  and  the  practical  rule  drawn  from  them  is  in 

I  Doolittle   V.   Greene,  32   Iowa,   123,  Co.,  18  N.  Y.  119,  in  which  it  was  held 

124.  tiiat  tlie  answer  shouhl  have  been  cor- 

'^  First  Nat.  Bank  v.  Hogan,  47  Mo.  rected  on  motion,  and  that,  in  tlie  absence 

472.     See  also  Ells  v.  Pacific  R.  R.,  55  of  such  motion,  an  issue  was  raised. 
Mo.  278,  286 ;  and  Wall  v.  Buffalo  Water 


ARGUMENTATIVE  DENIALS.  665 

every  respect  superior  to  the  slipshod  method  of  treatment 
adopted  by  the  other  ehxss  of  cases.  To  say  the  least,  a  denial 
in  the  form  of  a  negative  pregnant  is  such  a  glaring  violation  of 
logical  and  legal  principles,  that  it  exhibits  on  the  part  of  the 
pleader  either  the  ignorance  which  does  not  comprehend  the 
nature  of  an  issue,  or  the  astute  cunning  which  is  able  to  conceal 
the  want  of  a  defence  under  the  appearance  of  a  direct  answer. 
In  either  instance,  it  should  be  condemned  by  the  courts. 

V.  Argumentative  Denials^  and  S})ecijio  Defences  equivaleyit  to 
the  General  Denial. 

§  624.  It  has  been  shown  that  all  defences  are  either  (1) 
denials  of  all,  some,  or  one  of  the  plaintiff's  allegations;  or  (2) 
affirmative  new  matter  which  assumes  that  the  allegations  of  the 
complaint  or  petition  cannot  be  disproved,  but  at  the  same  time 
establishes  other  facts  which  defeat  the  right  of  action.  The 
general  denial,  we  have  seen,  is  a  brief  and  comprehensive 
formula,  denying  "  each  and  every  allegation  of  the  complaint  or 
petition  ; "  and  the  special  denial  is  based  upon  and  negatives  the 
single  averment  against  which  it  is  directed.  It  is  utterly  impos- 
sible, therefore,  that  a  denial,  either  general  or  special,  if  properly 
framed,  should  contain  any  affirmative  matter,  any  allegation  of 
facts  in  a  positive  and  direct  manner  as  though  they  constituted 
new  matter  and  a  defence  by  way  of  confession  and  avoidance. 
A  defence,  consisting  in  the  narrative  of  facts,  stated  under  the 
form  of  "  new  matter,"  which  were  not,  however,  new  matter, 
but  could  all  be  properly  proved  under  a  denial,  would  be  a  vio- 
lation of  the  true  theory  of  pleading,  and  of  the  classification 
and  description  of  defences  contained  in  all  the  codes. 

§  625.  It  sometimes  happens  that  the  pleader,  either  mistaking 
the  nature  of  the  facts  which  will  be  proved  by  the  defendant, 
and  thinking  them  to  be  new  matter  when  in  truth  they  are  only 
the  evidence  which  can  be  offered  in  support  of  a  denial,  or  sup- 
posing for  some  reason  that  his  case  will  be  strengthened  by 
spreading  all  these  details  upon  the  record,  sets  up  a  defence 
either  alone  or  joined  with  others  which  is  in  form  "  new  mat- 
ter." It  consists  of  affirmative  allegations,  stated  as  though  they 
confessed  and  avoided  the  plaintiff's  cause  of  action :  and  yet 
the  facts  thus  averred  are  not  new  matter ;  they  are  simply  the 


666  CIVIL    REMEDIES. 

evidence  which  can  be  offered  in  support  of  a  denial.  The  defence 
altogether  is  therefore  the  same  as  a  denial :  if  it  goes  to  the  • 
whole  complaint  or  petition,  it  is  equivalent  to  the  general  denial ; 
if  it  goes  to  some  particular  allegation  or  allegations,  it  is  equiva- 
lent to  one  or  more  specific  denials.  It  is  plain  that  the  defendant 
has  gained  nothing  by  s\ich  a  mode  of  pleading  ;  he  has  not  added 
any  thing  to  his  case  ;  he  has  not  stated  a  fact  which  he  could  not 
have  proved  under  a  simple  answer  of  denial.  On  the  contrary, 
in  limiting  the  scope  of  his  proofs  at  the  trial  to  the  particular 
matter  which  he  has  pleaded,  he  may  have  weakened  his  defence 
by  shutting  out  the  consideration  of  other  facts  which  he  could 
have  given  in  evidence  under  a  proper  denial.  At  all  events,  he 
has  unnecessarily  disclosed  his  case  to  the  adverse  party. 

§  626.  This  is  clearly  an  unpractical  as  well  as  unscientific 
mode  of  pleading.  Such  a  defence  is  an  "  argumentative  denial." 
The  same  fault  which  I  have  thus  indicated,  sometimes  existed 
under  the  old  procedure.  A  plea  in  the  form  of  a  special  plea  by 
way  of  confession  and  avoidance,  which  contained  no  matter  of 
that  character,  but  only  matter  which  could  be  proved  under  a 
traverse,  and  which  was  therefore  equivalent  to  a  traverse,  —  to 
the  general  issue  perhaps,  —  was  generally  bad  on  demurrer. 
The  objection  was,  not  that  the  facts  thus  set  up  constituted  no 
defence  at  all,  — for  the  very  assumption  was  that  they  did  consti- 
tute a  defence  by  way  of  traverse,  —  but  the  external  forms  of  the 
system  were  considered  to  be  of  such  importance,  and  this  faulty 
pleading  so  completely  violated  them  all,  that  it  was  held  to  be 
worthless  for  any  purpose. 

§  627.  The  same  rules  of  order  and  classification  are  violated 
by  such  defences  at  the  present  day  ;  but  as  the  new  procedure 
looks  rather  to  the  substance  than  to  the  form,  and  as  a  demurrer 
to  the  answer  is  only  allowed  on  the  ground  of  insufficiency,  — 
that  is,  when  the  facts  stated  do  not  constitute  any  defence, — 
the  pleading  which  I  have  described  as  an  "  argumentative  denial  " 
is  not  considered  bad  on  demurrer.  The  plaintiff's  remedy  is  by 
motion  to  make  the  defence  more  certain  and  definite,  and  to 
strike  out  redundant  and  superfluous  matter.  If  such  motion 
was  more  frequently  resorted  to,  and  was  favored  by  the  courts, 
it  would  soon  produce  the  effect  of  working  a  marked  improve- 
ment in  pleadings.  It  is  not  merely  a  scientific  blemish,  but  a 
great  practical  evil,  to  have  the  record  incumbered  by  a  mass  of 


ARGUMENTATIVE   DENIALS.  667 

unnecessary  allegations,  and  matters  purely  evidentiary,  when  a 
short  and  comprehensive  denial  would  the  better  subserve  the 
rights  of  the  parties,  and  more  clearly  bring  out  and  exhibit  the 
issues  designed  to  be  raised  by  the  answer. 

§  628.  An  example  or  two  from  among  the  decided  cases  will 
be  sufficient  to  illustrate  the  kind  of  defence  which  is  equivalent 
to  the  denial  and  the  rulings  of  the  courts  thereon.  An  action 
was  brought  by  the  University  of  Vincennes  against  one  Judah 
to  recover  certain  bonds  alleged  to  be  the  property  of  the  insti- 
tution, which  the  defendant  had  converted  to  his  own  use.  His 
answer  set  up,  that  the  university  was  indebted  to  him  in  a 
large  amount  for  professional  services,  and  that  the  board  of 
trustees  had  passed  a  resolution  allowing  him  to  retain  and  have 
these  bonds  as  compensation  for  his  services  and  in  settlement  of 
his  claim.  The  reply,  instead  of  denying  this  answer,  averred 
that  Judah  had  been  secretary  of  the  board  of  trustees ;  that  he 
fraudulently  entered  this  resolution  in  the  books  of  record  of  the 
university ;  that  no  such  resolution  was  ever  passed  ;  and  it  set 
out  the  resolution  which  was  actually  passed,  and  which  was  very 
different  from  that  alleged  in  the  answer.  To  the  paragraph  of 
the  reply  containing  this  matter  the  defendant  demurred ;  the 
demurrer  was  overruled,  and  he  appealed.  In  disposing  of  the 
question  thus  raised,  the  court  said :  "  Now,  this  reply  is  simply  a 
denial  of  so  much  of  the  answer  as  alleges  the  adoption  of  the 
resolution,  or,  in  other  words,  the  making  the  contract  by  the 
trustees.  It  is  argumentative,  and  it  needlessly  explains  how  a 
resolution  never  made  by  the  trustees  comes  to  be  found  on  their 
records.  This  is  surplusage.  But  neither  argumentativeness 
nor  surplusage  justifies  a  demurrer  under  our  system  of  pleading. 
There  was,  therefore,  no  error  in  overruling  the  appellant's  demur- 
rer to  the  second  paragraph  of  the  reply."  ^  It  is  plain  that  a  gen- 
eral denial  of  this  answer  would  have  admitted  in  evidence  all 
the  facts  speciall}'-  pleaded  in  the  reply  under  the  form  of  new 
matter ;  and  the  reply  was,  in  fact,  nothing  more  than  a  denial. 

§  629.  When  the  answer  contains  two  or  more  defences,  viz., 
1st,  a  general  denial,  and,  2d,  a  special  defence  in  the  form  of  new 
matter,  but  in  fact  equivalent  to  the  general  denial,  and  a  de- 
murrer to  the  latter  has  been  sustained,  no  material  error  is  thus 

i  Judah  V.  University  of  Vincennes,  23  Ind.  272,  277.  See  also  Clink  v.  Thurs- 
ton, 47  Cal.  21,  29. 


668  CIVIL   REMEDIES. 

committed,  and  the  judgment  will  not  be  reversed ;  for  the  same 
facts  which  were  averred  in  the  special  defence  could  be  fully 
proved  under  the  general  denial,  and  the  defendant's  whole  case 
would  thus  be  available  under  the  issue  which  remained  upon  the 
record. 1  In  an  action  for  goods  sold  and  delivered,  the  answer  in 
each  of  three  separate  defences  set  up  the  same  facts  with  imma- 
terial variations:  viz.,  that  the  goods  were  sold  to  the  defendant's 
wife  without  his  knowledge  or  consent ;  that  she  had  at  the  time 
wrongfully  abandoned  him,  and  was  living  apart  from  him,  and 
for  these  reasons  he  was  not  liable  for  the  price.  A  demurrer  to 
these  defences  having  been  sustained  in  the  court  below,  the 
Supreme  Court  on  appeal  held  that  they  were  all  argumentative 
general  denials:  "their  effect  was  simpl}'  to  aver  that  the  goods 
were  not  sold  to  the  defendant,  and  all  the  matters  relied  upon 
could  have  been  proved  under  a  general  denial."  It  was  further 
said,  that  a  motion  was  the  proper  remedy  to  correct  such  faulty 
pleading,  and  the  demurrer  was  irregular:  but  the  irregularity  in 
this  instance  was  merely  technical,  and  the  error  committed  was 
immaterial,  and  had  not  prejudiced  any  rights  of  the  defendant ; 
for,  as  he  had  pleaded  the  general  denial  in  addition  to  the  special 
defence  mentioned,  his  entire  case  was  provable  under  that  part 
of  the  answer.2 

§  630.  This  leads  me  to  the  second  branch  of  the  present  sub- 
division ;  namely,  the  combination  of  the  general  denial  with 
other  defences  equivalent  thereto  in  the  same  answer.  The 
argumentative  denial  described  above  is  frequently  in  practice 
used  in  connection  with  the  general  denial  inserted  in  the  same 
answer.  It  would  seem  as  though  the  pleader,  after  he  had  writ- 
ten the  brief  general  denial,  could  not  be  satisfied  with  its  efficacy, 
and  considered  it  necessary  to  add  in  separate  divisions  of  the 
answer  a  further  statement  of  the  very  facts  which  he  knew 
would  constitute  the  defence,  and  which  could  all  be  proven 
under  the  general  deniaL  This  mode  of  pleading  is  ftiulty  in  the 
ys  extreme  ;  it  has  not  a  single  reason  in  its  favor,  not  an  excuse  for 
its  existence  ;  it  overloads  the  record  with  superfluous  matter,  and 
produces  nothing  but  confusion  and  uncertainty.  In  a  few  States 
the  courts  have  struggled  to  correct  this  vicious  departure  from 

1  Chicago,  &c.  R.  R.  v.  West,  37  Ind.  211,  215;  Waggoner  v.  Liston,  37   Ind. 
357. 

2  Day  V.  Wamsley,  33  lud.  145. 


ARGUMENTATIVE   DENIALS.  669 

the  true  theory  of  pleading,  and  have  enforced  the  rnles  and 
remedies  which  the  codes  amply  provide.  It  is  unnecessary  to 
argue  that  this  species  of  answer  is  in  direct  conflict  with  the 
plainest  principles  and  the  most  express  requirements  of  the 
codes.  Those  statutes  permit  only  "  denials  "  and  statements  of 
"  new  matter,"  that  is,  matter  which  is  truly  a  confession  and 
avoidance  ;  they  do  not  authorize  averments  of  matter  which  is 
not  new,  but  which  is  simply  a  detail  of  evidence  going  in  sup- 
port of  a  denial.  While  this  reformed  system  constructed  by  the 
codes  is  perfect  in  its  scientific  character,  —  far  surpassing  in 
that  respect  the  loose  notions  introduced  by  the  common-law 
courts  in  relation  to  the  function  of  the  ordinary  "  general  issues  " 
of  the  old  procedure,  —  it  is  at  the  same  time  in  the  highest  degree 
practical.  If  the  advantaged  which  ought  to  be  derived  from  the 
great  reform  are  to  be  obtained,  it  is  clearly  the  duty  of  all  the 
courts  to  insist  upon  a  return  to  the  simple  methods  which 
the  codes  so  clearly  prescribe,  concerning  which,  indeed,  they  do 
not  leave  the  slightest  doubt  or  uncertainty. 

§  631.  In  Indiana,  a  practice  has  become  settled,  which  might 
well  be  borrowed  by  the  courts  of  all  the  other  States.  I  know 
of  no  single  rule  of  procedure,  which,  if  uniformly  adopted  and 
rigidly  enforced,  would  work  out  a  happier  result  in  bringing  the 
forms  and  modes  of  pleading  back  to  the  simple  and  scientific 
theory  embodied  in  the  codes,  than  the  rule  which  prevails  in 
Indiana,  and  which  I  shall  now  explain  and  illustrate.  I  dwell 
on  it  at  some  length,  not  because  it  can  now  be  regarded  as  part 
of  the  universal  practice  throughout  the  States  in  which  the  new 
system  has  been  established,  but  because  it  ought  to  become  so  ; 
and  I  hope,  that,  by  introducing  it  to  the  attention  of  the  bench 
and  bar  in  other  commonwealths,  its  merits  may  be  at  once  rec- 
ognized, and  its  methods  followed. 

§  632.  When  the  answer  contains  the  general  denial,  and,  in 
addition  thereto,  a  separate  defence  or  separate  defences  equiva- 
lent to  the  general  denial,  —  that  is,  mere  argumentative  denials 
as  above  described,  —  such  additional  defences,  it  is  settled,  are  ir- 
regular, and  will  be  overruled  and  expunged  from  the  record.  The 
remedy  is  not  by  demurrer,  for  the  reasons  already  given,  but  by 
motion  to  strike  out  as  redundant  and  superfluous.  If,  however,  a 
plaintiff,  instead  of  moving  to  strike  out,  should  demur  to  the 
vicious  defences,  and  that  demurrer  should  happen  to  be  sustained 


G70  CIVIL   REMEDIES. 

by  the  lower  court,  no  material  error  would  have  been  committed, 
for  the  same  result  would  have  been  reached  which  would  be 
attained  by  a  motion  ;  the  record  would  be  cleansed  of  its  redun- 
dancy, and  the  general  denial  would  remain,  under  which  all  the 
facts  constituting  the  defence,  and  which  had  been  set  forth  at 
large  in  the  rejected  paragraphs,  could  be  given  in  evidence  at  the 
trial.  This  practice,  I  say,  is  thoroughly  settled  in  Indiana  ;  and 
the  result  is  a  system  of  pleading  in  that  State  which  far  sur- 
passes, in  its  brevity  and  its  adherence  to  the  spirit  of  the  codes, 
that  prevailing  in  any  other  State.  The  cases  collected  in  the 
notes  illustrate  many  forms  of  pleading  to  which  the  rule  has 
been  applied,  and  exhibit  its  practical  workings  in  a  very  com- 
plete manner.^  The  same  doctrine  and  practice  have  been  occa- 
sionally followed  in  other  States.^  This  subject  will  be  again 
referred  to  in  the  subsequent  section  which  deals  with  the  union 
of  defences.  It  is  very  plain  that  the  faulty  method  described 
and  criticised  proceeds  in  a  very  great  measure  from  an  uncer- 
tainty in  the  mind  of  the  pleader  as  to  the  matter  which  may  be 
given  in  evidence  under  the  "  general  denial :  "  whatever,  then, 
will  remove  that  uncertainty,  will  aid  in  producing  a  reform  in 
the  manner  of  stating  defences  in  the  answer. 

VI.    General  Denials  of  all  Allegations  not  othetnvise  admitted  or 

referred  to. 

§  633.  A  practice  has  recently  grown  up  of  framing  an  answer 
in  the  following  manner :  To  admit  such  of  the  plaintiff's  aver- 
ments, if  any,  as  the  facts  of  the  case  require  ;  to  deny  others 
wholly  or  partially  ;   to  explain  and  modify   others  if  thought 

1  Adams  Ex.  Co.  f.  Darnell,  81  Ind.  20;  175;    Widener    v.    State,   45   Ind.   244; 

Indianapolis,  &c.  R.  R.  v.  Rutherford,  29  Sparks  v.  Heritage,  45  Ind.  66;  Lewis  v. 

Ind.  82 ;  JetTcrsonville,  &c.  R.  R.  v.  Dun-  Edwards,  44  Ind.  833 ;  Ohio  and   Miss, 

lap,  2'J  Ind.  426 ;  Rhode  v.  Green,  26  Ind.  R.  R.   v.  Hemberger,  43  Ind.  462,  464  ; 

83;  Boudurant  v.   Bladen,   19  Ind.   160;  Wilson  v.  Root,  43  Ind.  486,  493. 
Butler  V.  Edgerton,  15  Ind.  15;  Westcott  ^  Rost  v.  Harris,  12  Abb.  Pr.  446,  per 

r.  Brown,  13  Ind.  83;  Garrison  y.  Clark,  Bosworth    J.;    Radde    v.    Ruckgaber,    3 

11   Ind.  369;  Cain  ?;.  Hunt,  41   Ind.  466,  Duer,   684;    Simpson    v.   McArthur,    16 

471;  P'erguson  f.  Ramsey,  41  Ind.   511,  Abb.  Pr.  302  (n.),  per  Brady  J. ;  Bruck  «. 

513;  Chicago,  &c.  R.  R.  v.  West,  37  Ind.  Tucker,  42  Cal.  346.     It  is  held  in  Florida 

211;      Urton     v.    State,    37    Ind.    339;  that  the  court  may  strike  out  such  a  spe- 

Port    V.   Russell,    36    Ind.    60;    Day   v.  cial  defence  or  not  as  it  pleases,  and  neither 

Wamsley,   33   Ind.    145;    Allen  v.  Ran-  ruling  will  be  error.     Davis  i;.  Shuler,  14 

dolph,  48  Ind.  496  ;  Trogden  v.  Deckard,  Flor.  438,  445. 
45  Ind.  572;  Wolf  v.  Schofield,  38  Ind. 


PARTIAL   GENERAL   DENIALS.  671 

necessary  ;  in  short,  to  unite  in  one  answer  or  division  thereof  a 
mass  of  special  admissions,  denials,  explanations, "and  affirmative 
statements,  and  to  conclude  the  whole  with  a  sweeping  clause 
somewhat  in  this  form  :  "  As  to  each  and  every  other  allegation 
in  said  complaint  not  herein  expressly  admitted  or  denied  or  men- 
tioned, the  defendant  hereby  denies  the  same  ;  "  or,  "  And  the 
defendant  denies  each  and  every  other  allegation  in  said  com- 
plaint not  hereinbefore  expressly  admitted  or  denied  or  men- 
tioned." Although  a  somewhat  similar  mode  of  putting  in 
issue  the  averments  of  a  bill  in  equity  was  occasionally  resorted 
to  by  chancery  pleaders  under  the  former  system,  the  codes  give 
no  countenance  to,  nor  authority  for,  such  a  mongrel  form  of 
answer.  The  true  spirit  and  intent  of  the  theory  introduced  by 
the  reformed  procedure  plainly  demand  certainty,  precision,  and 
definiteness  in  the  allegations  of  both  parties,  and  especially  in 
the  denials  by  which  the  defendant  places  on  the  record  the  exact 
issues  intended  to  be  tried.  In  this  respect  the  new  method  was 
to  be  a  complete  departure  from  the  vagueness  and  uncertainty 
resulting  from  the  broad  effect  given  to  the  general  issues  in 
"  assumpsit,"  "  debt,"  and  "  trover  "  by  the  common-law  courts, 
and  also  from  the  loose  and  incomplete  manner  of  presenting  the 
issues  which  necessarily  characterized  the  answer  in  chancery. 
This  design  of  the  codes  would,  however,  be  utterly  defeated  if 
the  vicious  style  of  defence  thus  described  should  become  com- 
mon ;  and  the  courts,  it  is  submitted,  ought  to  have  pronounced 
most  emphatically  against  it  when  it  first  made  its  appearance. 

§  634.  The  codes  require  either  a  general  denial,  or  specific 
denials,  or  defences  in  confession  and  avoidance ;  and  also  that 
each  defence  must  be  separately  stated,  so  that  the  issue  raised  by 
it  may  be  perceived  at  once.  The  "  general  denial  "  is  evidently 
intended  to  be  an  answer  to  the  entire  complaint  or  petition,  —  to 
negative  all  its  averments.  The  design  of  the  legislature  and  the 
understanding  of  the  bar  upon  this  point  were  shown  by  the  im- 
mediate adoption  of  the  form  in  use  throughout  all  the  States. 
The  code  of  Iowa,  revised  in  1873,  expressly  enacts  that  the 
general  denial  is  interposed  to  the  whole  petition  ;  and  this  pro- 
vision is  plainly  a  statutory  construction  of  the  universally  pre- 
vailing doctrine :  a  specific  denial,  on  the  other  hand,  must  be 
addressed  to  some  single,  particular  allegation,  and  must  distinctly 
indicate  the  portion  intended  to  be  controverted  by  it.     I  am  of 


672  CIVIL   REMEDIES. 

opinion  that  each  specific  denial  ought  to  be  a  single  and  separate 
defence  by  itself,  so  that,  if  the  issue  upon  it  should  be  decided  in 
favor  of  the  defendant,  the  cause  of  action  would  be  defeated. 
In  this  respect,  I  think,  the  specific  denials  of  the  codes  were 
intended  to  be  analogous  to  the  special  traverses  provided  for  by 
the  English  judges  in  their  new  rules  of  pleading  adopted  in 
1834.  Certain  it  is  that  the  codes  do  not,  by  any  stretch  of  their 
language,  contemplate  an  answer  consisting  of  a  general  denial 
directed  to  a  part  only  of  the  complaint  or  petition,  and  con- 
nected with  other  admissions,  partial  denials,  and  explanations. 

§  635.  Again :  this  form  of  answer  makes  it  extremely  diffi- 
cult, and  often  impossible,  to  determine  Avhat  allegations  are 
denied,  and  what  are  passed  by  in  silence,  and  therefore  ad- 
mitted. If  the  complaint  or  petition  contains  numerous  aver- 
ments, and  the  answer  is  such  a  mass  of  express  admissions, 
partial  explanations,  and  statements  of  matter  which  is  merely 
evidentiary,  and  concludes  with  the  formula  above  quoted,  we 
have  all  the  evils  which  can  result  from  the  most  vicious  system 
or  no-system  that  can  possibly  be  conceived.  The  object  of 
pleading  is  to  ascertain  and  present  the  issues  of  fact  between 
.  the  litigants,  so  that  they  can  be  readily  perceived  and  decided 
by  the  court  and  jury.  The  special  boast  of  the  common-law 
methods  was,  that  they  brought  out  these  issues  singly  and  clearly. 
I  am  confident  that  the  theory  of  the  reformed  procedure,  when 
lived  up  to  and  accurately  followed,  will  give  much  better  prac- 
tical results  than  were  ever  obtained  as  a  whole  from  the  former 
system.  The  kind  of  answer  which  I  have  described  violates 
every  principle  of  this  theory,  and  is  a  contrivance  of  ignorance 
or  indolence. 

§  636.  Notwithstanding  the  foregoing  considerations,  which 
appear  to  be  such  plain  and  necessar}^  inferences  from  the  lan- 
guage as  well  as  the  intent  of  the  codes,  the  courts  of  New  York 
and  of  some  other  States  have  given  a  seeming  approval  to  this 
most  slovenly  manner  of  stating  the  defence  of  denial.  So  far 
as  their  decisions  have  passed  upon  the  subject,  they  seem  either 
to  approve  such  answers,  or  at  most  to  hold,  that,  if  improper,  the 
only  mode  of  correction  is  by  a  motion  to-make  them  more  defi- 
nite and  certain  ;  in  other  words,  they  are  sufficient  to  raise 
the  intended  issues.  It  cannot  be  said,  however,  that  the  ques- 
tion has  been  settled  by  authority,  or  that  this  species  of  denial 


DENIALS    OF   LEGAL   CONCLUSIONS.  673 

has  become  an  established  method  of  pleading  wherever  the 
reformed  procedure  prevails.  The  few  cases  which  touch  upon 
the  matter  will  now  be  cited.  In  an  action  upon  a  pol- 
icy of  life  insurance,  the  answer  was  of  the  kind  mentioned, 
and  concluded  as  follows :  that  "  the  defendant  denied  each  and 
every  allegation  of  the  complaint  not  therein  expressly  admitted 
or  denied."  The  Court  of  Appeals  said  of  this  answer:  "It  is 
clear  both  upon  principle  and  authority,  that,  under  a  general  or 
specific  denial  of  any  fact  which  the  plaintiff  is  required  to 
prove  to  maintain  the  action,  the  defendant  may  give  evidence  to 
disprove  it.^  If  an  answer  containing  denials  of  the  allegations 
of  the  complaint,  except  as  thereinafter  stated,  is  rendered  indefi- 
nite, uncertain,  or  complicated,  the  remedy  is  by  motion  to  make 
the  answer  more  definite,  and  not  by  exclusion  of  evidence  on 
the  trial."  ^  A  similar  answer,  ending  with  a  denial  of  "  each 
and  every  allegation  of  the  complaint  except  as  herein  admitted 
or  stated"  was  held  by  the  same  court  to  be  good  and  to  raise  an 
issue.^ 

VII.  Allegations  of  Issuable  Facts,  and  not  Cojiclusions  of  Law, 

shoidd  be  denied. 

§  637.  The  complaint  or  petition,  in  addition  to  the  facts  from 
which  the  right  of  action  arises,  sometimes  contains  the  conclu- 
sions of  law  which  result  from  those  facts,  such  as  the  indebted- 
ness of  the  defendant,  his  liability  in  damages,  and  the  like.  It 
is  a  fundamental  principle  of  the  pleading  authorized  by  the 
codes,  that  these  averments  of  fact  must  be  denied,  and  not 
merely  the  legal  conclusion  therefrom  ;  a  traverse  of  the  latter 
without  one  of  the  former  is  a  nullity,  and  creates  no  issue. 
When  the  issuable  facts  are  denied,  a  denial  of  the  conclusions  of 
law  is  unnecessary,  but  would  certainly  be  harmless.  In  this 
respect,  the  reformed  procedure  has  introduced  a  new  feature  into 
the  science  of  pleading.  It  is  often  said,  I  am  aware,  by  writers 
of  authority   even,   that,   under  the  common-law  methods,   the 

1  Wheeler  v.  Billings,  38  N.  Y.  263.  also  Leyde  v.  Martin,  16  Minn.  38  ;  Becker 

-  Greenfield   v.  Mass.  Mut.   Life   Ins.  r.  Sweetzer,  15  Minn.  427,  484  ;  Kingsley 

Co.,  47  N.  Y.  430,  437,  per  Grover  J.     An  v.  Gilnian,  12  Minn.  515,  517,  518,  which 

expression  in  this  quotation  indicates  a  sliow  that  this  form  of  denial  is  fully  ap- 

certain  misconception  on  the  part  of  the  proved  by  the  Minnesota  court, 
learned  judge.     A  cjeneral  denial  of  a  fact  3  Youngs  v.  Kent,  46  N.  Y.  672;  and 

is  something  unknown   in  the  system  of  see  Allis  v.  Leonard,  46  N.  Y.  688. 
pleading  established  by  the  codes.     See 

48 


674  CIVIL    REMEDIES. 

facts  were  always,  and  the  legal  conclusions  were  never,  to  be 
traversed.  But  this  statement  is  clearly  inaccurate.  In  some  of 
the  most  common  forms  of  declaration  in  constant  use,  the  lead- 
ing averment  was  that  "  the  defendant  is  indebted^''''  a  mere  infer- 
ence of  law ;  and  the  general  issue  might  be,  "  he  is  not 
indebted,"  or  "  he  was  never  indebted,"  which  was  certainly 
nothing  but  the  denial  of  a  legal  conclusion.  All  this  has  been 
swept  away  by  the  codes,  and  every  trace  of  it  left  in  the  mod- 
ern practice  is  in  direct  opposition  both  to  the  spirit  and  to  the 
letter  of  the  statute.  A  denial  of  indebtedness  or  of  liability, 
without  denying  the  allegations  of  fact  from  which  the  indebt- 
edness or  liability  is  claimed  to  have  arisen,  is  a  nullity  ;  it 
raises  no  issue,  and  will  be  held  bad  on  demurrer,  as  is  shown  by 
the  subjoined  cases :  In  an  action  upon  a  promissory  note,  the 
answer  admitted  the  execution  of  the  note,  and  denied  that  the 
defendant  owed  the  debt  to  the  plaintiff.  A  demurrer  to  this 
answer  was  sustained,  the  court  saying  :  "  This  answer  under 
the  former  mode  of  pleading  would  have  amounted  to  a  plea  of 
nil  debet,  and  would  not  have  been  good,  as  the  suit  was  brought 
upon  a  note  in  writing  having  the  dignity  of  a  specialty ;  and  we 
are  of  opinion  that  the  answer  was  not  sufficient  under  the  pres- 
ent practice.  It  was  not  sufficient  to  state  that  defendant  did 
not  owe  the  debt."  ^  All  the  cases,  with  hardly  an  exception, 
are  to  the  same  effect :  as  in  an  action  on  a  note,  an  answer  say- 
ing that  "  the  defendants  do  not  owe  and  ought  not  to  pay  the 
note,  for  they  do  not  admit  the  regular  protest  thereof  and 
notice,"  raised  no  issue  ;^  also  where,  in  an  action  for  goods  sold 
and  delivered,  the  answer  "  denies  that  the  defendant  is  indebted 
to  the  plaintiff  as  stated  in  the  petition  ;  "  ^  and  where,  in  an 
action  on  a  note,  the  answer  simply  denied  indebtedness  to  the 
plaintiff  as  claimed  in  the  petition,  or  in  any  other  sum  or  amount 
whatever.* 

§  638.  The  same  is  true  of  any  other  denials  of  mere  infer- 
ences or  conclusions  of  law.  Thus,  in  a  suit  upon  a  note  given 
to  the  plaintiff,  a  married  woman,  and  made  exj^ressly  payable  to 

1  Haggard  v.  Hay's  Administrator,  13  Curtis  v.  Richards,  9   Cal.  33  ;    Wells  v. 

B.  Mon.  175.  McL'ike,  21  Cal.  215;  Higgins  v.  Germain. 

-  Clark    V.   Finnell,    16   B.   Mon.  o20,  1  Mont.   230;  Skinner  v.   Clute,  'J  Nev. 

335.  342. 

3  Francis  v.  Francis,  18  B.  Mon.  57 ;  •«  .Morton  v.  Coffin,  20  Iowa,  235,  238. 

and  see  Nelson  v.  Murray,  23  Cal.  338  ; 


DENIALS    OF    INFORMATION    AND    BELIEF.  675 

her  on  its  face,  a  defence  that  the  "  note  is  not  her  separate 
property,"  and  a  denial  that  she  is  the  legal  owner  and  holder 
thereof,  were  both  held  nullities,  and  struck  out  on  motion. ^  The 
defence,  in  an  action  to  foreclose  a  mortgage,  "  that  D.  [the  mort- 
gagor] was  regularly  and  duly  discharged  from  all  his  debts, 
including  that  to  the  plaintiff,  under  proceedings  in  insolvency," 
was  held  not  to  be  new  matter  requiring  a  reply,  "  but  only 
a  conclusion  of  law  and  not  of  fact,"  and  not  to  create  an  issue.^ 
In  an  action  to  recover  for  injuries  caused  by  the  negligence  of 
the  defendant,  the  complaint,  after  stating  the  necessary  facts 
showing  the  negligent  omissions,  and  the  consequent  destruction 
of  the  plaintiff's  property,  concluded,  "  to  his  great  damage,  to 
wit,  in  the  sum  of  $800."  The  answer  simply  denied  "  that  the 
plaintiff  had  suffered  damage  in  the  sum  of  $800."  This  denial 
raised  no  issue.^ 

§  639.  The  converse  of  the  rule  illustrated  by  the  foregoing 
cases  is  also  true.  If  the  answer  denies  the  material  facts 
averred  by  the  plaintiff,  or  alleges  material  facts  constituting  a 
defence  of  new  matter,  it  need  not  deny  the  plaintiff's  conclu- 
sions of  law,  or  state  any  conclusions  of  law  as  the  inference 
from  the  facts  Avhich  it  has  pleaded.  Thus,  in  an  action  upon  a 
contract,  the  answer  alleged  all  the  facts  necessary  to  show  that 
the  agreement  was  illegal  as  being  in  restraint  of  trade  ;  but  the 
illegality  was  not  expressly  averred,  nor  relied  upon  as  a  defence 
by  means  of  any  clause  drawing  such  a  conclusion  from  the  facts 
which  were  stated.  The  defence,  however,  was  held  to  be  suffi- 
cient both  in  form  and  substance :  the  facts  constituting  it  were 
all  pleaded  ;  and  that  was  enough,  without  adding  the  legal  infer- 
ences from  them.* 

VIII.  Denials  of  Knowledge  or  Information. 

§  640.  All  the  denials,  either  general  or  specific,  to  which  the 
rules  stated  in  the  foregoing  subdivisions  apply,  may  be  either 
positive,  or  denials  of  knowledge  or  information  in  respect  to  the 

1  Frost  V.  Harford,  40  Cal.  165,  166  ;  without  controverting  an}'  of  the  facts  al- 
Felch  V.  Beaudry,  40  Cal.  439.  leged,  simply  denied  that  tlie  plaintiff  had 

2  Christy  v.  Dana,  42  Cal.  174,  178.  any  lien,  was  held  to  raise  no  issue.    Brad- 

3  Huston  V.  Twin  and  City,  &c.  Tump,  bury  v.  Cronise,  46  Cal.  287.  See,  how- 
Co.,  45  Cal.  550;  Higgins  v.  Wortel,  18  ever,  Simmons  v.  Sisson,  26  N.  Y.  264, 
Cal.  330.     In  an  action  to  enforce  a  lien  270,  273. 

upon  defendant's  land,  an  answer  which,         ■*    Prost  v.  More,  40  Cal.  347. 


676  CIVIL   REMEDIES. 

matters  alleged  by  the  plaintiff.  When  the  latter  mode  is 
adopted,  the  formula  prescribed  by  the  statute  should  be  exactly 
followed,  not  because  there  is  any  value  in  the  form  simply  as 
such,  but  because  in  no  other  manner  can  the  defendant  satisfy 
the  demands  of  the  code,  and  raise  a  substantial  issue,  —  an 
issue  Avhich  is  not  a  subterfuge  and  pretence.  When  the  denial 
is  positive,  the  defendant  is  required  to  negative  directly  each 
and  every  allegation  of  the  complaint  or  petition,  or  the  particu- 
lar ones  controverted  by  him  if  less  than  all.  If  this  cannot  be 
done  by  reason  of  the  defendant's  ignorance,  and  he  is  therefore 
permitted  to  choose  the  other  alternative,  he  must  deny  that  he 
has  any  knowledge  or  information  concerning  the  matters  alleged 
sufficient  to  enable  him  to  form  a  belief  respecting  them.  Any 
other  form  must  of  necessity  be  evasive.  And  so  the  cases  all 
hold  ;  but  a  single  illustration  will  suffice.  The  complaint  in  an 
action  to  recover  the  i^rice  of  gas  furnished  to  a  city  being  veri- 
fied, the  answer  was  as  follows :  "  And  this  defendant  says  that 
the  defendant  has  no  knowledge  or  information  in  relation  to  the 
allegations  of  the  second  count  of  the  said  complaint,  and  there- 
fore denies  the  same."  On  the  trial,  the  averments  of  the 
second  count  were  treated  by  the  court  as  not  denied,  and  as 
therefore  admitted  to  be  true ;  and  this  ruling  was  sustained  on 
appeal.  The  answer  was  held  to  be  a  nullity :  the  only  denials 
permitted,  it  was  said,  are  those  positive  in  form,  and  those  which 
deny  any  knowledge  or  information  sufficient  to  form  a  belief; 
any  others  raise  no  issue. ^  The  same  conclusion  was  reached  in 
respect  to  an  answer  which  stated  that  "  the  defendant  has  not 
sufficient  knowledge  or  information  to  form  a  belief  whether 
[certain  allegations]  are  true,  and  therefore  denies  the  same."  ^ 

§  641.  Although  the  denial  of  knowledge  or  information  may 
be  used  in  respect  to  every  form  of  traverse,  whether  general  or 
specific,  yet  it  cannot  be  resorted  to  under  all  circumstances. 
There  are  occasions  in  wdiich  the  defendant  will  not  be  permitted 
to  say  that  he  has  no  knowledge  or  information  of  the  matter 
sufficient  to  form  a  belief,  because  such  a  statement  would  be  a 
palpable  falsehood,  a  plain  impossibility.  When  the  allegation  in 
the  complaint  or  petition  is  of  a  fact  which  must  of  necessity  be 
within  the  personal  knowledge  of  the  defendant ;  when  it  avers  an 

1  Gas  Co.  V.  San  Francisco,  9  Cal.  453. 

2  Curtis  V.  Richards,  9  Cal.  33. 


THE    ISSUES   FORMED   BY    DENIALS.  677 

act  done  or  an  omission  suffered  by  liim  personally ;  when,  for 
example,  it  states  a  contract  entered  into,  or  a  deliberate  wrong 
perpetrated,  by  himself,  —  he  must  know  whether  the  averment 
is  true  or  false.  He  will  not  be  suffered  to  assert  a  defective 
memory,  for  such  a  forgetfulness  is  contrary  to  the  general  expe- 
rience of  mankind.  If  his  recollection  is  at  fault,  the  law  affords 
him  ample  opportunity  and  means  of  refreshing  it  during  the 
interval  between  the  service  of  the  adverse  pleading  and  the 
time  for  answering.  A  denial,  therefore,  of  the  form  described, 
pleaded  in  answer  to  allegations  of  a  nature  purely  personal  to 
the  defendant,  will  be  treated  as  sham  and  evasive,  and  will  be 
struck  out  on  motion.  A  demurrer  would  not  be  the  proper 
remedy ;  because  the  objection  is  not  to  the  sufficiency  as  a 
defence^  but  to  the  bad  faith  of  the  party  in  interposing  a  plead- 
ing of  such  a  character.  The  rule  was  accurately  stated  by  Mr. 
Justice  Field  of  the  California  Supreme  Court  substantially  as 
follows:  "If  the  facts  alleged  are  presumptively  within  the 
knowledge  of  the  defendant,  he  must  deny  positively,  and  a 
denial  of  information  or  belief  will  be  treated  as  an  evasion. 
Thus,  for  example,  in  reference  to  instruments  in  writing  alleged 
to  have  been  executed  by  the  defendant,  a  positive  answer  will 
alone  satisfy  the  requirements  of  tlie  statute.  If  the  defendant 
has  forgotten  the  execution  of  the  instruments,  or  doubts  the  cor- 
rectness of  their  description,  or  of  the  copies  in  the  complaint,  he 
should,  before  answering,  take  the  requisite  steps  to  obtain  an 
inspection  of  the  originals.  If  the  facts  alleged  are  not  such  as 
must  be  within  the  personal  knowledge  of  the  defendant,  he  may 
answer  according  to  his  information  and  belief.^ 

IX.  Issues  raised  hy  Denials,  and  ivhat  may  he  proved  under  them. 

§  642.  In  discussing  the  topics  embraced  within  this  subdi- 
vision, the  same  doctrines  apply  both  to  general  and  to  specific 
denials.  The  only  difference  is  in  respect  to  the  extent  of  their 
effect  and  operation.^  The  general  denial  raises  an  issue  with 
the  entire  complaint  or  petition,  and  admits  evidence  in  contra- 
diction to  all  the  plaintiff's  material  allegations;  while  the  spe- 

1  Curtis  V.  Richards,  9  Cal.  33,  38.  See  also,  to  the  same  effect,  Wing  v. 
Dagan,   8  Bush,  583,  586;  Jackson  Sharp  Co.  v.  Holland,  U  Flor.  381,  386. 

2  See  Coles  v.  Soulsby,  21  Cal.  47,  50,  per  Field  C.  J. 


678  CIVIL   REMEDIES. 

cific  denial  raises  an  issue  with  the  particular  allegation  alone  to 
which  it  is  directed,  and  only  admits  evidence  in  contradiction 
thereto.  The  same  rules  as  to  the  effect  of  the  general  denial 
upon  the  issue  raised  with  the  whole  complaint,  and  the  proofs 
admissible  under  it,  apply  with  equal  force  to  the  specific  denial 
in  respect  to  the  narrower  issue  which  it  creates  and  the  evidence 
which  it  admits.  It  will  only  be  necessary,  therefore,  to  discuss 
the  objects  and  functions  of  the  general  denial,  since  the  results 
of  this  discussion  will  be  true  of  specific  denials  within  their 
limited  operation.  In  pursuing  this  discussion,  I  shall  inquire 
(1)  into  the  nature  and  effect  of  the  general  denial  and  the 
issues  formed  by  it,  and  shall  therein  compare  and  contrast  it 
with  the  general  issues  of  the  common  law  ;  (2)  the  general 
nature  of  the  evidence  which  may  be  admitted,  and  the  defences 
which  may  be  set  up  under  it ;  and  (3)  I  shall  state  and  classify 
a  number  of  particular  defences,  and  matters -of  defence,  which 
have  been  held  admissible  or  not  admissible,  or,  in  other  words,  a 
number  of  particular  defences  which  have  been  determined  to  be 
defences  by  way  of  denial,  or  to  be  new  matter. 

§  643.  1.  No  topic  connected  with  the  whole  subject  of 
pleading  is,  I  think,  more  important  than  the  questions  thus  sug- 
gested. Undoubtedly,  much  of  the  confusion,  redundancy,  and 
unscientific  character  of  pleadings  under  the  codes  is  the  result 
of  ignorance  or  uncertainty  as  to  the  power  of  the  general  denial 
to  admit  defences  upon  which  the  defendant  relies.  In  very 
many  instances  the  answer  is  made  a  long  and  rambling  mass  of 
purely  evidentiary  details,  when  the  simple  general  denial,  not 
exceeding  two  or  three  lines  in  length,  would  be  fully  as  effica- 
cious, and  would  present  the  issue  in  a  sharper  and  clearer  man- 
ner. The  general  denial  is,  in  some  respects,  broader  in  its 
scope,  and  in  some  respects  narrower,  than  the  general  issues  as 
a  whole  at  the  common  law.  But  little  aid  can  be  obtained  from 
the  rules  which  governed  the  use  of  the  latter  traverses,  except 
by  way  of  contrast;  and  3'et  a  statement  in  outline  of  those 
rules  is  important,  in  order  that  the  contrast  may  be  seen.  I 
shall,  therefore,  by  way  of  preface,  collect  and  arrange  the  fun- 
damental doctrines  of  the  common  law  concerning  the  employ- 
ment and  effect  of  the  general  issue  in  the  various  ancient  forms 
of  action. 

§  644.  All  the  possible  defences  in  bar  may  be  reduced  to  a 


THE   GENERAL   ISSUES.  679 

few  comprehensive  classes ;  and  this  classification  will  assist  us 
in  appreciating  the  distinction  between  those  defences  which 
may  be  proved  under  a  traverse  of  the  plaintiff's  allegations  and 
those  which  must  be  j)leaded  specially  as  "  new  matter,"  or 
matter  in  confession  and  avoidance.  In  respect  to  contracts,  all 
possible  defences  must  either  (1)  deny  that  there  ever  was  a 
•cause  of  action  ;  or  (2)  admit  there  was  once  a  cause  of  action, 
but  avoid  it  by  showing  subsequent  or  other  matter.  The  first 
of  these  two  classes  may  be  subdivided  into  (a)  those  which 
deny  that  a  sufficient  contract  was  ever  made  ;  and  (i)  those 
which  admit  that  a  sufficient  contract  was  originally  made,  but 
show  that,  before  breach  thereof^  —  that  is,  before  the  time  for  per- 
formance arrived,  —  it  was  in  some  manner  discharged,  or  ceased 
to  be  binding.  Similar  divisions  might  be  made  of  the  defences 
in  bar  to  personal  actions  for  all  purposes.  From  this  analysis 
the  following  conclusions  may  be  drawn  :  Defences  in  bar  to  all 
legal  actions  on  contract  or  for  tort  may  be  separated  into,  firsts 
those  which  deny  that  the  plaintiff  ever  had  the  cause  of  action 
alleged,  because  either  no  foundation  therefor  ever  existed,  or,  if 
.such  foundation  ever  existed,  it  had  been  in  some  manner  re- 
moved before  the  cause  of  action  arose  therefrom  ;  and  second, 
those  which  admit  that  a  cause  of  action  once  existed,  but  show 
that  it  no  longer  exists.^ 

§  645.  The  Creneral  Issues  at  the  Common  Laiv,  1.  In  assumpsit. 
The  general  issue  in  the  action  of  assumpsit,  called  noyi-assumjjsit^ 
Vi^as,  "  That  the  defendant  did  not  undertake  or  promise  in  the 
manner  and  form  as  the  plaintiff  hath  complained  against  him." 
When  we  look  at  the  grammatical  construction  of  this  plea,  it  is 
plain  that  in  terms  it  only  denies  the  promise  ;  and  yet  it  was  un- 
derstood as  putting  in  issue  every  allegation  of  the  declaration. 
The  original  scope  and  effect  of  this  general  issue  were  greatly 
enlarged  by  and  through  a  long  series  of  judicial  decisions,  until 
the  following  doctrine  became  fully  established  by  the  courts  : 
namely,  that,  under  this  general  issue  in  the  action  of  assumpsit, 
there  might  be  proven  any  defence  falling  within  the  first  of  the 
two  general  classes  stated  at  the  close  of  the  last  paragraph  ;  that 
is,  any  defence  showing  that  the  plaintiff  never  had  a  cause  of 
action,  and  also  most  of  the   defences  falling  within  the  second 

1  See  1  Ch.  PI.  (Springfield  ed.,  1840),  pp.  471,  472. 


680  CIVIL   REMEDIES. 

of  those  classes,  and  showing  that  there  was  no  subsisting  cause 
of  action  at  the  time  of  the  commencement  of  the  suit.^  The 
following  are  examples  of  the  particular  defences  which  illus- 
trate this  general  proposition,  and  which  might  be  given  in  evi- 
dence under  the  general  issue  of  noii-assumijsit :  Those  which 
insisted  that  no  such  contract  as  the  one  alleged  had  ever  been 
in  fact  made  ;  those  which  admitted  that  the  contract  had  been 
in  fact  made,  but  denied  that  was  in  law  obligatory  upon  the 
defendant,  which  class  embraced  among  others  the  following  par- 
ticular cases :  that  another  person  ought  to  have  been  made  co- 
plaintiff  ;  that  defendant  w^as  an  infant,  a  lunatic,  or  drunk,  or  a 
married  woman,^  and  therefore  incapable  of  contracting  ;  that  the 
contract  was  made  under  duress  ;  want  of  a  sufficient  or  of  a 
legal  consideration  ;  illegality  in  the  contract,  as  gaming,  usury, 
stock-jobbing,  &c.  ;  that  the  contract  was  void  under  the  Statute 
of  Frauds ;  release  or  discharge  before  breach  ;  alteration  ;  non- 
performance of  a  condition  precedent  by  the  plaintiff:  those 
which  admitted  not  only  that  the  contract  had  in  fact  been  made, 
but  also  that  a  cause  of  action  thereon  had  once  existed,  and 
asserted  that  it  had  been  discharged  before  the  suit  was  brought; 
which  class  embraced,  among  others,  payment,  accord  and  satis- 
faction, a  promissory  note  or  other  negotiable  security  given  for 
the  debt  and  still  outstanding,  foreign  attachment,  arbitrament, 
former  recovery  for  the  same  cause,  a  higher  security  given,  and 
release.^  In  many  of  the  States  a  notice  of  the  matter  consti- 
tuting most  of  the  special  defences  was  required  by  statute  to 
accompany  the  general  issue  in  order  that  the  same  might  be 
proven  on  the  trial ;  but  my  object  is  merely  to  contrast  the  pure 
common-law  doctrines  witli  those  introduced  by  the  code.  It  is 
evident  that  there  were  very  few  defences  which  muBt  have  been 
specially  pleaded  in  assumpsit ;  and  the  result  was,  that  the  par- 
ties went  to  trial  in  the  majority  of  cases  (where  this  ancient 
system  prevailed  unchanged)  without  the  plaintiff  having  re- 
ceived any  intimation  on  the  record  of  the  nature  of  the  defence 
he  was  to  meet.  This  great  evil  was  remedied  in  England  by 
statute  and  by  rules  of  court  made  thereunder  in  1834,  which 
entirely  changed  the  functions  of  the  general  issue,  and  required 
that  most  of  the  foregoing  defences  should  be  pleaded  specially. 

1  1  Cli.  PL,  pp.  476-478.  ^  1  Ch.  PI.,  pp.  476,  477. 


THE   GENERAL   ISSUES.  681 

§  646.  2.  In  debt.  In  the  action  of  delt^  npon  simple  contract  or 
legal  liabilities,  the  general  issue,  called  nil  debet,  was,  "  That  the 
defendant  doth  not  owe  the  said  sum  above  demanded,  or  any  part 
thereof,  in  manner  and  form  as  the  plaintiff  hath  above  com- 
plained against  him."  This  language  being  in  the  present  tense, 
taken  in  its  plain  grammatical  sense,  denies  the  existence  of  the 
debt  at  the  time  from  which  it  speaks.  Although,  strictly  speak- 
ing, it  controverts  a  conclusion  of  law  only,  yet  it  was  regarded 
as  the  proper  mode  of  putting  in  issue  all  the  averments  of  fact ; 
and  under  it,  as  a  general  rule,  anj^  defence  could  be  proved 
which  showed  that  nothing  was  due  at  the  time  of  the  pleading, 
—  not  only  every  defence  which  showed  that  the  debt  had  never 
in  fact  or  in  law  been  contracted,  but  also  every  one  which 
showed  that  the  debt  once  contracted  had  been  discharged,  as 
payment,  release,  and  the  like.  Those  which  were  required  to 
be  specially  pleaded  were  very  few,  and  were  regarded  as  ex- 
ceptions to  the  general  rule  ;  the  most  important  were  the  Statute 
of  Limitations,  tender,  and  set-off,  neither  of  which  could  be 
proved  under  the  plea  of  nil  debet?-  In  the  action  of  debt  upon 
a  specialty,  there  were  two  cases.  (1.)  Where  the  deed  was 
the  mere  inducement  to  the  action,  and  the  other  matter  of 
fact  was  the  real  foundation  thereof.  In  this  case  also  the  gen- 
eral issue  was  nil  debet,  and  it  was  governed  by  the  same  lax  rule 
which  controlled  its  use  when  the  action  was  upon  contracts  not 
under  seal.^  (2.)  Where  the  deed  was  the  very  foundation  of 
the  action.  There  was  in  this  case  no  answer  of  nil  debet,  nor 
any  analogous  thereto.  The  general  issue  was  non  est  factum,  as 
follows  :  "  And  the  said  defendant  says  that  the  said  supposed 
writing  obligatory  [or  indenture,  or  agreement]  is  not  his  deed." 
This  plea  was  far  more  restricted  in  its  operation  than  either  of 
the  others  above  mentioned.  It  admitted  proof  of  matters  going 
to  show  that  the  instrument  was  never  executed  by  the  defendaiit 
in  point  of  fact,  and  of  matters  tending  to  show  that  for  some 
reason  the  deed  was  void  at  the  common  law  ab  initio  ;  but  facts 
designed  to  show  that  it  was  simply  voidable,  or  that  it  was  void 
by  statute,  and,  in  short,  all  other  defences  impeaching  its  legal- 
ity, and  all  defences  consisting  in  matters  of  discharge,  such  as 
payment  and  release,  or  of  performance  or  of  excuse,  and  the 
like,  must  be  specially  pleaded.^ 

1  1  Ch.  PI.,  p.  481.  3  1  Ch.  PI.,  pp.  483,  484. 

2  Ibid.  p.  482. 


682  CIVIL    REMEDIES. 

§  647.  3.  In  covenant.  In  the  action  of  covenant.,  the  only  plea 
which  might  be  called  the  general  issue  was  non  est  factum.  Its 
form  and  the  rule  as  to  the  defences  provable  under  it  were  iden- 
tical with  those  which  existed  in  reference  to  the  same  answer  in 
debt  upon  a  specialty.  The  defendant  might  prove  that  he  did 
not  execute  the  agreement  in  suit,  but  could  not  prove  that  he 
had  not  broken  its  covenants.  In  other  words,  this  general  issue 
did  not  put  in  issue  all  the  allegations  of  the  declaration  ;  and  all 
defences  other  than  the  non-execution  of  the  instrument  must 
be  pleaded  specially.' 

§  648.  4.  In  account.  There  was  no  general  issue  in  this  action. 
All  matters  which  went  to  show  that  the  plaintiff  was  not  entitled 
to  the  judgment  for  an  accounting  must  be  pleaded  specially. 
All  other  matters  which,  conceding  that  the  defendant  was  liable 
to  account,  merely  affected  the  act  of  accounting  itself,  and  the 
credits  and  debits  therein,  could  not  be  pleaded  in  bar  of  the 
action,  but  were  to  be  set  up  in  the  proceeding  before  the  officer 
who  heard  it,  —  the  auditor  or  master.^ 

§  649.  5.  In  detinue.  The  action  of  detinue  was  used  in  cases 
to  which  that  of  replevin  had  been  very  generally  extended  in 
the  various  States,  and  in  which  the  action  "  for  the  claim  and 
delivery  of  personal  property  "  is  the  appropriate  means  of  relief 
under  the  code.  The  general  issue,  non  detinet,  was  the  follow- 
ing formula :  "  And  the  said  defendant  says  that  he  does  not 
detain  the  said  goods  and  chattels  in  the  said  declaration  speci- 
fied, nor  any  part  thereof,  in  the  manner  and  form  as  the  said 
plaintiff  hath  above  complained."'  It  admitted  proof  of  any 
facts  showing  that  the  defendant  did  not  withhold  the  goods,  or 
that  the  property  or  possession  thereof  was  not  in  the  plaintiff. 
In  other  words,  it  put  in  issue  the  plaintiff 's  property  and 
possession  and  the  defendant's  detention.  This  general  ruler, 
apparently  so  simple,  had,  however,  been  refined  upon,  and 
nice  distinctions  had  been  introduced.  Thus  the  defendant 
could  not  prove  that  the  goods  had  been  pledged  to  him,  but 
might  prove  that  they  had  been  given  to  him  by  the  plaintiff, 
since  the  latter  fact  denied  the  plaintiff 's  property.  The  defence 
of  lien  must  always  have  been  specially  averred.^ 

§  650.  6.  In  case.  The  general  issue  in  this  most  important 
and  comprehensive  action  was  termed  7iot  guilty^  and  was  in  the 

1  1  Ch.  PI.,  p.  487.  3  1  Ch.  PL,  p.  488. 

2  Ibid.  p.  488.  V 


THE    GENERAL    ISSUES.  683 

following  form  :  "  And  the  said  defendant  says  that  he  is  not 
guilty  of  the  2:)remises  [or  grievances]  above  laid  to  his  charge, 
or  any  part  thereof,  in  manner  and  form  as  the  said  plaintiff  hath 
above  thereof  complained  against  him."  The  action  of  ease  was 
said  to  have  been  based  upon  equity  and  good  conscience  ;  and, 
under  the  above  issue,  any  matter  which  showed  that  the  plaintiff 
ought  not  in  justice  to  recover  might  in  general  be  proved.  The 
general  rule  was  that  tlie  plea  of  not  guilts/,  denying  the  entire 
declaration,  admitted  proof  (1)  of  all  matters  which  tended  to 
contradict  any  averment  in  the  declaration,  (2)  of  all  matters 
which  operated  as  a  discharge  of  the  cause  of  action,  and  (3)  of 
all  matters  by  way  of  justification  'or  excuse.^  Thus,  for  ex- 
ample, in  the  action  on  the  case  for  defamation,  slander,  or  libel, 
all  defences  could  be  established  under  the  answer  of  not  guilty^ 
except  those  which  directly  confessed  the  speaking  or  publishing 
the  words,  and  their  defamatory  nature  under  ordinary  circum- 
stances^ but  avoided  the  cause  of  action  by  showing  that  they 
were  not  defamatory  under  the  special  circumstances  of  that  case  ; 
namely,  the  defences  of  "justification"  and  of  "privileged 
communication."  These  two  defences  —  the  one  setting  up 
the  truth  of  the  words,  and  the  other  setting  up  facts  which 
removed  the  imputation  of  malice,  and  in  reality  excused  the 
speaking  or  publishing  —  must  be  pleaded  specially.  Every  other 
matter  might  be  proved  under  the  general  issue ;  although  an 
election  was  frequently  possible  in  respect  to  such  defences, 
whether  they  should  be  presented  in  this  manner,  or  should  be 
pleaded  specially.^ 

§  651.  7.  In  trover.  The  general  issue  in  trover  was  also  not 
guilty^  and  in  the  same  form  as  in  case^  the  action  itself  being  a 
modification  or  special  application  of  the  more  general  action  of 
case.  This  general  issue  was  the  most  comprehensive  of  any  known 
to  the  common  law,  and  admitted  all  possible  defences,  with  per- 
haps one  or  two  exceptions.  In  fact,  pleading  specially  was  almost 
unknown  in  trover.  No  defences  were  ever  presented  in  this 
manner  except  the  Statute  of  Limitations,  and  release  ;  and  it  was 
doubted  whether  such  mode  was  necessary  even  in  these  two 
instances.^ 

§  652.  8.  In  replevin.    The  plea  which  was  called,  althoughim- 

1  1  Ch.  PL,  pp.490,  491.  3  i  Ch.  PI.,  p.  498. 

2  Ibid.  pp.  491-497. 


684:  CIVIL    REMEDIES. 

properly,  the  general  issue  in  replevm^  Avas  non  cepit.  "  And  the 
defendant  says  that  he  did  not  take  the  said  cattle  [or  goods  and 
chattels]  in  the  said  declaration  mentioned,  or  any  of  them,  in 
manner  and  form  as  the  said  plaintiff  hath  above  complained." 
This  answer  put  in  issue  the  fact  of  the  takiny^  and  also  the 
taking  in  the  place  mentioned  in  the  declaration  ;  the  latter  fact 
being  material  in  the  special  purposes  for  which  this  action  was 
used  at  the  common  law.^  The  action  itself,  in  respect  of  its 
original  objects  and  the  rules  of  pleading  controlling  it,  bears  but 
little  resemblance  to  the  action  bearing  the  same  name  which 
was  generally  in  use  in  the  various  States,  and  which  had  been 
greatly  modified  by  statutes  and  by  judicial  decisions  ;  and  cer- 
tainly bears  still  less  likeness  to  the  proceeding  for  "  the  claim 
and  delivery  of  personal  property,"  introduced  by  the  codes. 

§  653.  9.  In  trespass.  The  general  issue  not  guilty  differed 
slightly  in  form  from  that  in  case.  "  And  the  said  defendant  says 
that  he  is  not  guilty  of  the  trespasses  above  laid  to  his  charge,  or 
any  part  thereof,  in  the  manner  and  form  as  the  said  plaintiff 
hath  above  complained."  The  effect  of  this  plea  was  confined  to 
the  scope  and  extent  of  its  denials  in  their  grammatical  sense  ;  in 
other  words,  as  the  language  puts  in  issue  only  the  trespasses,  the 
defendant  was  restricted  to  the  proof  of  matters  tending  to  show 
that  he  did  not  commit  the  acts  complained  of.  Trespass  might 
be  brought  for  violence  to  the  person,  for  injury  to  or  the  tak- 
ing and  carrying  away  of  goods,  and  for  intrusion  upon  or  injury 
to  land.  In  the  first  case,  the  defendant  might  prove  that  he 
committed  no  assault,  battery,  false  imprisonment,  &c. ;  and,  in 
the  second,  that  he  did  not  injure  nor  take  nor  carry  away  the 
chattels.  In  the  third  case,  the  scope  of  the  general  issue  was 
somewhat  broader.  To  maintain  the  action,  possession  of  the 
land  by  the  plaintiff  was  necessary ;  and  the  declaration  averred 
his  right  by  stating  that  it  was  "  the  close  of  the  plaintiff."  The 
general  issue  was  regarded  as  denying  this  possessory  right  of  the 
plaintiff  in  the  land ;  so  that,  under  it,  the  defendant  might  show 
not  only  that  he  did  not  commit  the  acts  complained  of,  but  also 
that  the  plaintiff  had  no  possessory  right  to  the  premises,  by  prov- 
ing title  and  the  right  of  possession  in  himself,  or  in  some  other 
person  under  whom  he  claimed,  or  by  whose  authority  he  had  acted. 

1  1  Ch.  PI.,  p.  498. 


THE   GENERAL   ISSUES.  685 

All  other  defences  in  either  of  these  three  phases  of  the  action 
must  be  specially  pleaded. ^ 

§  654.  10.  In  ejectmeyit.  The  only  plea  in  ejectment  was  the 
general  issue  of  not  guilty,  as  in  trespass  ;  and,  under  it,  all  pos- 
sible defences  were  admitted  in  proof.^ 

§  655.  The  general  rules  of  which  I  have  thus  given  an  outline 
were  greatly  modified  by  statute  and  by  new  rules  of  pleading 
prepared  in  pursuance  thereof  b}^  the  English  judges  in  1834. 
These  modifications,  of  course,  liad  no  compulsive  authority  in 
this  country  ;  and,  as  they  effected  very  great  changes  in  the  com- 
mon-law doctrines,  they  were  not  followed  by  the  courts  of  the 
American  States  which  adhered  to  the  ancient  procedure.  The 
principal  object  and  eifect  were  to  restrict  the  scope  and  opera- 
tion of  the  general  issue  in  certain  actions,  —  assumpsit,  debt, 
case,  and  trover,  —  and  to  require  many  defences  to  be  specially 
pleaded  Avhich  could  before  have  been  proved  under  the  general 
issues.  It  will  be  seen  in  the  sequel  that  the  principles  of  plead- 
ing embodied  in  the  American  codes  necessarily  lead,  in  part,  to 
the  same  results.  It  is  my  design,  however,  to  compare  or  con- 
trast the  doctrines  of  the  reformed  American  procedure  with 
those  of  the  common  law,  and  not  with  the  changes  made  by 
English  legislation. 

§  656.  There  are  a  few  points  Avhich  should  be  noticed  in  re- 
lation to  the  foregoing  rules  which  governed  the  use  of  the  gen- 
eral issue.  In  the  first  place,  there  was  no  uniformity  in  its 
operation.  Its  effect  as  a  jjleading,  its  extent  and  scope  in  the 
admission  of  various  defences,  did  not  depend  upon  any  qualities 
inherent  in  itself,  but  resulted  rather  from  the  particular  form  of 
action  in  which  it  was  employed.  In  the  second  place,  the  for- 
mula which  was  adopted  in  these  different  actions  did  not  in  any 
single  instance  purport,  according  to  the  literal  import  of  the 
language,  to  answer  and  deny  all  the  allegations  of  fact  contained 
in  the  declaration,  and  which  together  made  up  the  plaintiff's 
cause  of  action,  but  rather  singled  out  and  contradicted  some 
particular  one  of  these  averments.  As,  for  example,  it  denied 
the  promise  in  assumpsit,  the  execution  of  the  deed  in  covenant 
and  in  one  species  of  debt,  the  commission  of  the  acts  complained 
of  in  case  and  in  trespass.  Even  in  the  single  instance  of  nil  debet, 
1  1  Ch.  PI.,  pp.  500-502.  2  1  ch.  PI.,  p.  507. 


686  CIVIL    REMEDIES. 

where  issue  seems  to  be  taken  by  the  express  terms  of  the  ])lea 
with  the  entire  cause  of  action,  the  denial  was  not  directed  to  the 
facts,  but  rather  to  the  legal  conclusion  which  arises  from  these 
facts.  In  the  third  place,  this  answer,  in  its  practical  operation, 
was  miscalled  the  "  general  issue  ;  "  for  it  ranged  through  almost 
every  possible  degree  of  efficacy.  In  some  instances,  it  did 
not  put  in  issue  all  the  allegations  of  the  declaration,  and  was 
therefore  far  less  than  a  general  denial ;  in  other  instances,  it 
not  only  put  in  issue  all  the  allegations  of  the  declaration,  but 
also  admitted  proof  of  nearly  all  the  defences  which  the  defend- 
ant could  rely  upon,  and  thus  united  in  itself  all  the  possible  de- 
nials, and  almost  all  the  matters  of  affirmative  defence,  which 
could  be  used  to  defeat  the  plaintiff's  recovery.  In  no  single 
instance  did  it  perform  the  exact  functions  of  the  general  denial ; 
that  is,  in  no  case  did  it  barely  put  in  issue  all  the  averments 
of  the  declaration,  compelling  the  plain tiif  to  prove  them,  and 
permitting  the  defendant  to  disprove  them.  It  either  fell  short 
of,  or  went  far  beyond,  this  natural,  and,  as  it  seems  to  me,  strictly 
logical,  office  and  function.  In  this  respect,  the  theory  of  plead- 
ing embodied  in  the  codes  is  more  severely  scientific  as  well  as 
more  simple  and  practical  than  that  which  lay  at  the  basis  of  the 
common-law  sj^stem.  The  general  issue  of  7ion-assump8it  in 
assumpsit,  of  nil  debet  in  debt  on  simple  contract,  and  of  not 
guilty  in  case  and  trover,  in  one  important  feature,  resembled 
the  modern  ''general  denial,"  since  they  did  put  in  issue  the  en- 
tire declaration,  and  acted  as  a  traverse  of  all  its  averments,  and, 
as  a  consequence,  admitted  any  evidence  which  tended  to  contra- 
dict those  averments.  But  they  all  went  far  beyond  this  limit, 
and  allowed  the  introduction  of  matters  which  were  in  no  sense 
denials  or  contradictions.  This  peculiar  characteristic  of  these' 
forms  of  the  general  issue  makes  it  impossible  to  draw  analogies 
from  them  to  aid  in  determining  the  true  office  of  the  general  de- 
nial. It  is  only  by  contrast  that  any  assistance  can  be  obtained 
from  the  ancient  rules  and  doctrines. 

§  657.  I  pass  from  the  foregoing  prefatory  matter  to  examine 
the  nature  and  office  of  the  general  denial,  and  the  issues  raised 
by  it.  In  pursuing  this  inquiry,  I  shall  rely  upon  the  judicial 
opinions  found  in  decisions  which  are  universally  regarded  as  au- 
thoritative, even  using  their  language  instead  of  my  own  wher- 


ISSUES   FORMED    BY   THE   GENERAL    DENIAL.  687 

ever  practicable.  The  case  of  McKyring  v.  BulP  is  conceded  to 
be  the  leading  one.  The  opinion  of  Mr.  Justice  S.  L.  Selden  is 
so  full,  accurate,  and  able  an  exposition  of  the  subject,  that  other 
judges  have  done  little  more  than  repeat  his  conclusions.  The 
action  was  brought  to  recover  compensation  for  work  and  labor. 
The  complaint  alleged  that  the  plaintiff  entered  into  the  employ- 
ment of  the  defendant  at  a  certain  date,  and  continued  in  such 
employment  at  defendant's  request,  doing  work  and  labor  until 
another  specified  date,  and  that  the  services  so  rendered  were 
worth  the  sum  of  $650 ;  and  concluded  as  follows  :  "  That  there 
is  now  due  to  this  plaintiff,  over  and  above  all  j)ayments  and 
offsets  on  account  of  said  work,  the  sum  of  $134  ;  which  said 
sum  defendant  refuses  to  pay  :  wherefore  the  plaintiff  demands 
judgment  for  the  last-mentioned  sum,  and  interest  from  the  4th 
day  of  May,  1854."  The  answer  was  only  a  general  denial.  On 
the  trial,  the  defendant  offered  to  prove  payment  as  a  defence  to 
the  action  ;  but  the  evidence  was  excluded,  on  the  ground  that 
the  defence  should  have  been  pleaded.  He  then  offered  to  prove 
part  payment  in  mitigation  of  damages  ;  but  this  was  also  rejected 
for  the  same  reason.  The  case  thus  presented  two  questions  to 
the  Appellate  Court  for  decision :  (1)  Whether  payment  could 
have  been  proved  as  a  defence  under  the  general  denial ;  (2) 
whether  it  could  have  been  proved  in  mitigation  of  damages.  If 
the  action  had  been  assumpsit  or  debt,  the  evidence  would  have 
been  admissible  in  either  aspect.  The  opinion  of  Mr.  Justice 
Selden  will  be   found  in  the  foot-note.^ 

1  McKyring  v.  Bull,  16  N.  Y.  297,  de-  erse  in  the  plea  were  in  the  past  instead 
cided  in  1857.  of  the  present  tense,  and  related  to  a  time 

2  McKyring  v.  Bull,  16  N.  Y.  *297,  *299.  anterior  to  the  commencement  of  the  ac- 
"  While  the  general  issue  botii  in  assump-  tion.  Under  iion-assum)>sit,  therefore,  so 
sit  and  debt  was  in  theory  what  the  gen-  long  as.the  rule  of  pleading  which  ex- 
eral  denial  allowed  by  the  code  is  in  fact,  eludes  all  proof  not  strictly  within  the 
—  namely,  a  simple  traverse  of  the  mate-  issue  was  adhered  to,  no  evidence  could 
rial  allegations  of  the  declaration  or  com-  be  received  except  sucli  as  would  tend  to 
plaint, — yet  from  the  different  phraseology  show  that  the  defendant  never  made  the 
adopted  in  the  two  forms  of  action,  a  very  promise.  That  this  was  the  view  taken 
different  result  was  produced.  The  dec-  of  tiiese  pleas  in  the  earlier  cases  is  clear, 
laration  in  debt  averred  an  existing  in-  ...  We  find,  however,  that  a  practice 
debtedness;  and  tills  amount  was  traversed  afterwards  grew  up,  and  came  at  last  to 
by  the  plea  of  »//c/e6rfin  the  present  tense  :  be  firmly  established,  of  allowing,  under 
hence  nothing  could  be  excluded  which  the  plea  of  non-aasumpsit ,  evidence  of 
tended  to  prove  that  there  was  no  sub-  various  defences  which  admitted  all  the 
sisting  debt  when  the  suit  wascommenced.  essential  facts  staled  in  the  declaration. 
In  assumpsit,  on  the  contrary,  both  the  but  avoided  their  effect  by  matter  subse- 
averment  in  the  declaration  and  the  trav-  quent,  such  as  payment,  accord,  and  satis- 


688 


CIVIL    REMEDIES, 


§  658.  The  discussion  of  the  second  question  presented  in  this 
case  is  so  complete  and  instructive,  that  I  adopt  it  as  a  portion  of 


faction,  arbitrament,  release,  &c.  The 
history  and  progress  of  this  anomal}'  is 
easily  traced."  Mr.  Justice  Selden  goes 
on  to  cite  a  series  of  cases  showing  this 
course  of  change  by  which  7wn-assumpsit 
came  at  last  to  be  the  comprehensive  plea 
which  I  have  before  described,  and  to 
state  the  theories  by  which  judges  and 
text-writers  have  attempted  to  reconcile 
this  new  doctrine  and  rule  with  the  gram- 
matical form  of  the  plea.  He  then  pro- 
ceeds (pp.  301,  302)  :  "  These  errors 
proved  in  their  consequences  subversive 
of  some  of  the  main  objects  of  pleading. 
They  led  to  surprises  upon  the  trial,  or  to 
an  unnecessary  extent  of  preparation. 
The  courts,  however,  found  it  impossible 
to  retrace  their  steps,  or  to  remedy  this 
and  oth.er  defects  in  the  system  of  plead- 
ing without  authority  from  Parliament. 
This  authority  was  at  length  conferred  by 
the  act  of  the  3d  and  4th  William  IV., 
eh.  42,  §  1 ;  and  the  judges  in  Hilary  Term 
thereafter  adopted  a  series  of  rules,  one 
object  of  which  was  to  correct  the  errors 
which  have  been  adverted  to.  The  first 
rule  adopted  under  tlie  head  of  assumpsit 
provided  in  substance  that  the  plea  of  non- 
assumpsit  should  operate  when  the  promise 
was  express  as  a  denial  of  the  promise ; 
and  when  it  was  implied,  of  the  matters 
of  fact  upon  which  the  promise  was 
founded.  The  object  of  this  rule  was  to 
restore  pleading  in  assumpsit  to  its  origi- 
nal logical  simplicity.  It  was  obviously 
intended  as  a  mere  correction  of  previous 
judicial  errors.  It  interprets  the  plea 
of  non-assiimpsil  strictly  according  to  its 
terms,  and  thus  plainly  indicates  that  the 
courts  had  erred  in  departing  from  those 
terms.  That  this  was  the  view  of  the 
judges  is  shown  by  the  different  course 
taken  in  regard  to  the  plea  of  nil  debet. 
As  this  plea,  construed  according  to  its 
terms,  included  every  possible  defence 
within  the  issue  wiiich  is  formed,  the 
judges  did  not  attempt  to  change  the  im- 
port of  those  terms,  but  abrogated  the 
plea.  Rule  two,  under  the  head  of  Cove- 
nant and  Debt,  provides  that  '  the  plea 
of  nil  debet  shall  not  be  allowed  in  any 
action ; '  and  rule  three  substitutes  the 


plea  of  nunqunm  indebitatus  in  its  place. 
Thus  the  whole  practice,  which  had  con- 
tinued for  centuries,  of  receiving  evidence 
of  payment  and  other  special  defences 
under  the  plea  of  nil  debet  or  non-assuinpsit, 
was  swept  away."  Applying  this  his- 
torical analysis,  he  continues  (pp.  302, 
303) :  "  There  are  several  inferences  to 
be  drawn  from  this  brief  review  which 
have  a  direct  bearing  upon  our  new  and 
unformed  system  of  pleading.  The  first 
is,  that  no  argument  in  favor  of  allowing 
payment  or  any  other  matter  in  confession 
and  avoidance  to  be  given  in  evidence 
under  a  general  denial  can  be  deduced 
from  the  former  practice  in  that  respect, 
as  this  practice  has  been  abandoned  in 
England,  not  only  as  productive  of  serious 
inconvenience,  but  as  a  violation  of  all 
sound  rules  of  interpretation.  A  second 
inference  is,  that,  in  regard  to  pleading, 
it  is  indispensable  to  adhere  to  strict  logi- 
cal precision  in  the  interpretation  of  lan- 
guage. The  anomaly  which  has  been 
referred  to  was  wholly  produced  by  the 
slight  deviation  from  such  precision  in  the 
action  of  indebitatus  assumpsit  which  has 
been  pointed  out.  But  the  most  impor- 
tant inference  to  be  deduced  from  the  his- 
torical sketch  just  given  consists  in  an 
admonition  to  adhere  rigidly  to  that  rule 
of  pleading  which  permits  a  traverse  of 
facts  only,  and  not  of  legal  conclusions  ; 
and  this  brings  us  to  the  pivot  upon 
which  the  point  under  consideration  must 
necessarily  turn.  The  counsel  for  the  de- 
fendant insists,  that,  as  the  answer  con- 
troverts every  allegation  of  the  complaint, 
it  puts  in  issue  the  allegation  with  which 
it  concludes ;  viz.,  that  there  was  due  to 
the  plaintiff  at  the  commencement  of  the 
suit,  over  and  above  all  payments  and 
offsets,  the  sum  of  §134.  But  this  allega- 
tion is  a  mere  legal  conclusion  from  the 
facts  previously  stated.  Its  nature  is  not 
changed  by  the  addition  of  the  words 
'  over  and  above  all  payments.'  No  new 
fact  is  thereby  alleged.  The  plaintifT 
voluntarily  limits  his  demand  to  a  sum 
less  than  that  to  which,  under  the  facts 
averred,  he  would  he  entitled.  Were 
courts  to  allow  allegations  of  this  sort  to 


ISSUES   FORMED    BY   THE    GENERAL   DENIAL.  689 

the  text.  "  The  next  question  is,  whether  evidence  of  pay- 
ment, either  in  whole  or  in  2:)art,  is  admissible  in  mitigation  of 
damages.  As  the  code  contains  no  express  rule  on  the  subject  of 
mitigation,  except  in  regard  to  a  single  class  of  actions,  this  ques- 
tion cannot  be  properly  determined  without  a  recurrence  to  the 
principles  of  the  common  law.  By  these  principles,  defendants  in 
actions  sounding  in  damages  were  permitted  to  give  in  evidence, 
in  mitigation,  not  only  matters  having  a  tendency  to  reduce  the 
amount  of  the  plaintiff's  claim,  but,  in  many  cases,  facts  showing 
that  the  plaintiff  had  in  truth  no  claim  whatever.  It  was  not 
necessarily  an  objection  to  matter  offered  in  mitigation,  that,  if 
properly  pleaded,  it  would  have  constituted  a  complete  defence. 
Thus,  in  Smithers  t?.  Harrison,^  the  truth  of  the  charge  was  re- 
ceived in  mitigation  in  an  action  of  slander,  although  not  pleaded. 
Again :  in  the  case  of  Abbot  v.  Chapman,^  which  was  an  action  of 
assumpsit,  the  defendant  having  given  in  evidence  a  release,  Lord 
Holt  said  that  '  he  should  have  pleaded  exo7ieravit,  but  that  the 
evidence  was  admissible  in  mitigation  of  damages.'  So  too,  in 
the  modern  case  of  Nicholl  v.  Williams,^  which  was  assumpsit  for 
use  and  occupation,  the  defendant,  having  pleaded  payment  to  a 
part  of  the  demand,  and  non-assumpsit  to  the  residue,  was  per- 
mitted, upon  the  trial,  to  prove  payinent  in  full ;  but  it  was  held 
that  the  evidence  could  only  go  in  mitigation,  and  that  the  plain- 


be  traversed,  they  would  fall  into  the  this  design.  The  case  of  Van  Gieson 
same  difficulty  which  existed  in  regard  to  v.  Van  Gieson,  12  Barb.  520,  10  N.  Y. 
the  plea  of  nil  debet,  and  which  led  the  316,  contains  nothing  in  opposition  to  the 
judges  of  England  to  abolish  that  plea.  It  doctrine  here  advanced.  That  case  simply 
would  be  impossible  under  such  a  rule,  decided,  that,  where  the  complaint  con- 
in  a  great  variety  of  cases,  to  exclude  any  tained  an  averment  of  non-payment,  a 
defence  whatsoever,  if  offered  under  an  plea  of  payment  formed  a  complete  issue; 
answer  containing  a  general  denial.  In  that,  payment  having  been  denied  in  the 
England,  as  we  have  seen,  after  centuries  complaint,  it  was  unnecessary  to  repeat 
of  experience,  it  has  been  found  most  con-  that  denial  in  a  reply.  My  conclusion, 
ducive  to  justice  to  require  the  parties  therefore,  is,  that  neither  payment  nor 
virtually  to  apprise  each  other  of  the  pre-  any  other  defence  which  confesses  and 
cise  grounds  upon  which  they  intend  to  avoids  the  cause  of  action  can  in  any  case 
rely  ;  and  the  system  of  pleading  pre-  be  given  in  evidence  as  a  defence  under 
scribed  by  the  code  appears  to  have  been  an  answer  containing  simpl}'  a  general 
conceived  in  the  same  spirit.  It  was  evi-  denial  of  the  allegations  of  the  com- 
dently  designed  to  require  of  parties  in  plaint." 

all  cases  a  plain  and  distinct  statement  of  i  Smithies  v.  Harrison,  1  Lord  Rayra. 

the  facts  which  they  intend  to  prove  ;  and  727. 

any  rule  which  would  enable  the  defend-  '  Abbot  v.  Chapman,  2  Lev.  81.   . 

ants,  in  a  large  class  of  cases,  to  evade  this  ^  NiohoU  v.  Williams,  2  M.  &  W.  758. 

requirement,  would  be  inconsistent  with 

44 


690  CIVIL    REMEDIES. 

tiff  was  entitled  to  judgment  for  nominal  damages.  It  is  obvious 
that  this  practice  was  open  to  serious  objections.  It  enabled  de- 
fendants to  avail  themselves  of  their  defences  for  all  substantial 
purposes  without  giving  any  notice  to  the  plaintiff.  .  .  .  But  in 
regard  to  payment,  release,  &c.,  so  long  as  they  were  received  in 
evidence  under  the  general  issue  in  bar,  no  objection  could  be 
made  to  allowing  them  in  mitigation.  As  soon,  however,  as  this 
practice  was  abrogated  by  the  rules  of  Hilary  Term,  4th  William 
IV.,  the  question  as  to  the  admissibility  of  payment  in  mitigation 
at  once  arose."  The  learned  judge  here  traces  the  course  of  Eng- 
lish decisions  upon  this  question,  citing  and  reviewing  a  number 
of  cases,  and  referring  to  certain  additional  legislation  ;  ^  and  con- 
cludes this  discussion  as  follows :  "  The  matter  is  now  placed, 
therefore,  in  the  English  courts,  upon  a  footing  of  perfect  justice. 
If  the  demand  for  which  an  action  is  brought  has  once  existed, 
and  the  defendant  relies  upon  its  having  been  reduced  by  pay- 
ment, he  must  appear  and  plead. 

§  659.  "  It  is  to  be  determined  in  this  case  whether  we  have 
kept  up  with  these  courts  in  our  measures  of  reform.  The  rules 
of  Hilary  Term  (4  William  IV.)  and  the  system  of  pleading  pre- 
scribed by  the  code  have,  in  one  respect,  a  common  object ;  viz., 
to  prevent  parties  from  surprising  each  other  by  proof  of  what 
their  pleadings  give  no  notice.  These  rules,  according  to  the 
construction  put  upon  them  by  the  courts,  were  found  inadequate, 
so  far  as  proving  payment  in  mitigation  is  concerned,  to  accom- 
plish the  end  in  view ;  and  it  became  necessary  to  adopt  the  rule 
of  Trinity  Term  (1st  Vict.)  to  remedy  the  defect.  If  the  provi- 
sions of  the  code  are  to  receive  in  this  respect  a  construction  simi- 
lar to  that  given  to  the  rules  of  Hilary  Term,  then  an  additional 
provision  will  be  required  to  place  our  practice  upon  the  same 
basis  of  justice  and  convenience  with  that  in  England.  But  is  such 
a  construction  necessary?  Section  149  of  the  code  provides  that 
the  answer  of  the  defendant  must  contain,  1.  A  general  or  specific 
denial  of  the  material  allegations  of  the  complaint :  and,  2.  A 
statement  of  any  new  matter  constituting  a  defence  or  counter- 
claim. The  language  here  used  is  imperative,  — '  must  contain.' 
It  is  not  left  optional  with  the  defendant  whether  he  will  plead 

1  Lediard  v.  Boucher,  7  C.  &  P.  1,  per     M.  &  W.  228  ;  Rule  of  Trinity  Term,  1st 
Lord  Dennian ;  Shirley  v.  Jacobs,  7  C.  &     Vict.  4  M.  &  W.  4. 
P.  3,  per  Tindal  C  J.  ;  Henry  i;.  Earl,  8 


ISSUES   FORMED    BY   THE   GENERAL    DENIAL.  691 

new  matter  or  not ;  but  all  sucli  matter,  if  it  constitutes  '  a  de- 
fence or  counterclaim,'  must  be  pleaded  ;  and  this  is  in  entire 
accordance  with  the  general  principles  of  pleading.  The  word 
'  defence,'  as  here  used,  must  include  partial  as  well  as  complete  de- 
fences ;  otherwise  it  would  be  no  longer  possible  to  plead  payment 
in  part  of  the  plaintiff's  demand,  except  in  connection  with  a 
denial  of  the  residue  ;  since  section  153  provides  that  '  the  plain- 
tiff may  in  all  cases  demur  to  an  answer  containing  new  matter, 
when,  upon  its  face,  it  does  not  constitute  a  counterclaim  or  de- 
fence.'' Such  a  restriction  would  be  not  only  contrary  to  the 
general  spirit  of  the  code  in  regard  to  pleading,  but  would  ob- 
viously conflict  with  §  244,  subdivision  5,  which  provides  that 
'  where  the  answer  expressly,  or  by  not  denying,  admits  part  of 
the  plaintiff's  claim  to  be  just,  the  court  may,  on  motion,  order 
such  defendant  to  satisfy  that  part  of  the  claim,'  &c.  The  ques- 
tion to  be  determined,  then,  is,  whether  these  provisions  are  lim- 
ited in  their  operation  to  cases  where  the  defendant  seeks  to  avail 
himself  of  uqw  matter  strictly  as  a  defence  either  in  full  ov  pro 
tanto^  or  whether  they  extend  to  the  use  of  such  matter  in  miti- 
gation. Were  there  nothing  in  the  code  to  indicate  the  intention 
of  the  legislature  on  this  subject,  we  might  feel  constrained  to  fol- 
low the  construction  put  by  the  English  courts  upon  the  rules  of 
Hilary  Term.  But  §  246  provides  that  in  all  actions  founded  upon 
contract  brought  for  the  recovery  of  money  only,  in  which  the  com- 
plaint is  sworn  to,  if  the  defendant  fails  to  answer,  the  plaintiff  is 
entitled  absolutely  to  judgment  for  the  amount  mentioned  in  the 
summons  without  any  assessment  of  damages.  It  is  plain,  that,  in 
this  class  of  actions,  defendants  who  have  paid  part  only  of  the 
plaintiff's  demand  must  appear  and  plead  such  part  payment,  or 
they  will  lose  the  benefit  of  it  altogether.  The  provisions  of 
§  385  afford  no  adequate  remedy  in  such  cases,  because  the  offer 
to  allow  judgment  for  a  part  does  not  relieve  the  defendant  from 
the  necessity  of  controverting  the  residue  by  answer.  Section 
246  could  never  have  been  adopted,  therefore,  without  an  inten- 
tion on  the  part  of  the  legislature  that  §  149  should  be  so  con- 
strued as  to  require  defendants,  at  least  in  this  class  of  cases,  to 
set  up  part  payment  by  answer ;  and  it  is  difficult  to  suppose  that 
they  intended  the  section  to  receive  one  construction  in  one  class 
of  actions,  and  a  different  one  in  another.  My  conclusion,  there- 
fore, is,  that  §  149  should  be  so  construed  as  to  require  defendants 


692  CIVIL   REMEDIES. 

in  all  cases  to  plead  any  new  matter  constituting  either  an  entire 
or  partial  defence,  and  to  prohibit  them  from  giving  such  matter 
in  evidence  upon  the  assessment  of  damages  when  not  set  up  in 
the  answer.  Not  only  payment,  therefore,  in  whole  or  in  part, 
but  release,  arbitrament,  accord  and  satisfaction,  must  here  be 
pleaded.  In  this  respect,  our  new  system  of  pleading  under  the 
code  is  more  symmetrical  than  that  prescribed  by  the  rules  adopted 
by  the  English  judges."  ^ 

§  660.  To  this  admirable  judgment  I  shall  add  a  few  selections 
from  opinions  which  seem  to  express  the  theory  of  the  new  sys- 
tem in  an  accurate  manner,  or  to  illustrate  its  fundamental  prin- 
ciples. The  Supreme  Court  of  New  York,  in  an  early  case, 
described  the  office  of  the  general  denial  in  the  following  brief 
but  very  accurate  manner:  "Under  a  denial  of  the  allegations 
of  the  complaint,  the  defendant  may  introduce  any  evidence 
which  goes  to  controvert  the  facts  which  the  plaintiff  is  bound  to 
establish  in  order  to  sustain  his  action." ^  "'Under  the  general 
denial  of  the  code,  evidence  of  a  distinct  affirmative  defence  is 
not  admissible.  The  only  evidence  which  the  defendant  is  enti- 
tled to  give  is  limited  to  a  contradiction  of  the  plaintiff's  proofs, 
and  to  the  disproval  of  the  case  made  by  him."  ^ 

§  661.  Whenever  a  reply  is  made  necessary  to  all  new  matter 
contained  in  the  answer,  the  question  as  to  the  nature  of  a 
defence  has  often  arisen  upon  the  plaintiff's  failure  to  reply  to 
allegations  which  the  defendant  insisted  were  new  matter,  and 
therefore  admitted  to  be  true  by  means  of  the  omission,  but 
which  the  plaintiff  claimed  to  be  mere  argumentative  denials,  or, 
in  other  words,  unnecessary  averments  of  evidentiary  facts  which 
could  be  proved  under  a  denial.  In  passing  upon  such  a  ques- 
tion, the  Supreme  Court  of  Minnesota  fully  apjDroved  and  adopted 
the  general  doctrine   which  has  been  stated  in  the  text.*     In 

•  McKj-ring  v.  Bull,  16  N.  Y.  297,  304-  plaint,  or  set  up  new  matter  by  way  of 
307.  avoidance.       Those    matters   which    the 

2  Andrews  v.  Bond,  16  Barb.  633,  641,  defendant  should  aiErmatively  plead 
per  T.  A.  Johnson  J.  as  a   defence   are   'new  matter'  within 

3  Beaty  v.  Swarthout,  32  Barb.  293,  the  meaning  of  our  statute  ;  those 
294,  per  E.  Darwin  Smith  J. ;  and  see  that  amount  merely  to  a  traverse  of 
Wheeler  v.  Billings,  38  N.  Y.  263,  264,  the  allegations  of  the  complaint  are  not. 
per  Grover  J.  Was   it,  in   this   case,  incumbent  on  or 

*  Nash  V.  St.  Paul,  11  Minn.  174,  178,  proper  for  the  defendant  to  set  out  these 
per  Wilson  C.  J.:  "An  answer  must  matters  in  the  answer?  I  think  that  it 
either  deny  the  facts  alleged  in  the  com-  may  be  correctly  laid  down  as  a  general 


ISSUES   FORMED   BY   THE    GENERAL   DENIAL. 


693 


another  case  before  the  same  court,  the  question  was  examined 
with  great  care  and  marked  ability.  The  action  was  upon  a 
contract  of  sale :  the  answer  consisted  of  specific  denials  of  each 
allegation  in  the  complaint;  and  the  defendant  offered  to  prove 
that  the  contract  was  entered  into  on  Sunday,  and  was  therefore 
illegal  and  void.  An  extract  from  the  elaborate  opinion  of  the 
court  will  be  found  in  the  note.^ 

§  662.  In  an  action  to  recover  possession  of  chattels  where  the 
complaint  alleged  property  in  the  plaintiff,  and  the  answer  was  a 
general  denial,  evidence  tending  to  show  that  the  plaintiff  was 
not  the  owner  was  excluded  on  the  trial.  This  ruling  was  dis- 
approved on  appeal,  the  court  saying  :  "  The  answer  is  a  denial 
of  each  and  every  allegation  of  the  complaint.  The  allegation 
of  ownership  is  therefore  denied.  In  Bond  v.  Corbett,^  it  was 
held  that  any  thing  which  tends  to  directly  controvert  the  alle- 
gations in  the  complaint  may  be  shown  under  the  general  denial. 
The  defendant  might,  therefore,  introduce  evidence  to  sliow  that 
plaintiff  was  not  the  owner,  nor  entitled  to  possession."  "  The 
same  doctrine  is  maintained  by  the  Supreme  Court  of  Indiana.* 


rule  of  pleading,  that  a  defendant  wlio 
admits  the  facts  alleged,  but  wishes  to 
avoid  their  effect,  may  and  should  affir- 
matively set  up  the  special  matters  on 
which  he  relies  as  an  avoidance.  Finley 
r.  Quirk,  9  Minn.  194.  In  this  case  the 
answer  admits  a  contract  in  fact  with  the 
plaintiff,  but  denies  its  legal  validity,  and 
sets  up  the  matters  whicli  shows  it  void." 
1  Finley  v.  Quirk,  9  Minn.  194,  200, 
per  Wilson  C.  J.  :  "  The  plaintiff  can 
only  allege  facts ;  and,  in  the  answer, 
the  defendant  must  either  deny  the  facts 
alleged  in  tlie  complaint,  or  allege  new 
matter  by  way  of  defence  or  avoidance. 
And  where  the  answer  consists  merely  in 
a  denial,  it  is  quite  clear  that  the  plaintiff 
will  only  be  required  to  prove,  and  the 
defendant  only  permitted  to  controvert, 
the  facts  alleged  in  the  complaint.  In  the 
language  of  Selden  J.,  in  Benedict  v.  Sey- 
mour, 6  How.  Pr.  298,  '  a  general  traverse 
under  the  code  authorizes  the  introduc- 
tion of  no  evidence  on  the  part  of  the  de- 
fendant, except  such  as  tends  directly  to 
disprove  some  fact  alleged  in  the  com- 
plaint.' If  the  question  of  the  l&fd/ifi/  of 
the  sale  can  be  raised  by  a  denial  of  any 


allegation  of  the  complaint,  it  must  be  by 
a  denial  of  the  sale;  for  the  day  or  the 
time  of  the  sale  is  not  a  material  or  trav- 
ersable fact."  The  judge  then  refers  to  the 
common-law  doctrines  respecting  the  gen- 
eral issue,  and,  by  pursuing  a  similar  train 
of  reasoning  to  that  followed  by  Selden  J. 
in  McKyring  v.  Bull,  arrives  at  the  same 
conclusion,  that  the  general  denial  of  the 
codes  is  not  the  general  issue  of  any  com- 
mon-law form  of  action.  The  discussion 
is  thus  summed  up  :  "  We  liold,  therefore, 
(1)  that  an  answer  merely  by  way  of  de- 
nial raises  an  issue  only  on  the  facts  alleged 
in  the  complaint ;  (2)  that  the  denial  of 
the  sale  in  this  case  only  raised  an  issue 
on  the  sale  in  point  of  fact,  and  not  on  the 
question  of  the  legality  of  such  sale ; 
(3)  that  all  matters  in  confession  and 
avoidance  showing  the  contract  sued  upon 
to  be  either  void  or  voidable  must  be 
affirmatively  pleaded." 

2  Bond  V.  Corbett,  2  Minn.  248. 

3  Caldwell  v.  Bruggerman,  4  Minn. 
270,  276,  per  At  water  J. 

*  Wood  V.  Ostram,  29  Ind.  177,  186, 
per  Frazer  C.  J.  :  "  Whatever  may  have 
been   the  rule  formerly,  it  seems  to  us. 


694 


CIVIL   REMEDIES. 


§  663.  The  doctrine  thus  stated  has  also  been  approved  by  the 
Supreme  Court  of  Missouri. ^  "  It  is  clear,  both  upon  principle 
and  authority,  that,  under  a  general  or  specific  denial  of  any  fact 
which  the  plaintiff  is  required  to  prove  to  maintain  the  action, 
the  defendant  may  give  evidence  to  disprove  it."  ^  The  true 
scope  of  and  limitations  upon  this  form  of  traverse  were  well 
illustrated  in  a  ver}^  recent  case  decided  by  the  New  York  Court 
of  Appeals.  The  complaint  alleged  that  the  plaintiff  was  owner 
of  certain  shares  of  stock  in  a  corporation  ;  that  the  stock  had 
been  transferred  to  one  W.  to  hold  for  the  plaintiff;  that  W., 
without  the  plaintiff's  knowledge,  had  transferred  the  same  to 
the  defendant,  in  payment,  as  defendant  claimed,  of  a  debt  due 
from  him  to  defendant ;  and  prayed  that  defendant  might  be 
compelled  to  re-transfer  and  deliver  the  same  to  the  plaintiff. 
The  answer  was  a  general  denial.  The  nature  and  extent  of  the 
issues  thus  presented  were  discussed,  and  the  principle  which 
controlled  them  was  stated  by  Mr.  Justice  Grover,  who  pro- 
nounced the  defence  inadmissible.^ 


that,  under  our  Code  of  Procedure,  the 
matter  is  made  very  clear.  A  denial  ad- 
mits proof  of  no  affirmative  defence  as  the 
general  issue  did.  It  merely  puts  the 
plaintiff  upon  the  proof  of  his  averments, 
and  authorizes  tlie  defendant,  by  his  evi- 
dence, to  controvert  their  truth.  He  can 
offer  no  evidence  which  proceeds  upon 
the  ground  that  the  complaint  is  true,  but 
that  there  are  other  facts  which  preclude 
the  plaintiff's  recovery  notwithstanding." 
1  Northrup  v.  Miss.  Valley  Ins.  Co.,  47 
Mo.  435,  443,  per  Wagner  J.  :  "  When 
new  matter  is  relied  on  in  evidence  or  in 
defence,  it  must  be  set  out  in  the  answer. 
Under  the  old  system,  by  pleading  the 
general  issue,  every  thing  was  open  to 
proof  which  went  to  show  a  valid  defence. 
But  the  Practice  Act,  which  has  substi- 
tuted for  the  general  issue  an  answer,  and 
requires  a  statement  of  any  new  matter 
constituting  a  defence,  in  addition  to  a 
special  denial  iDf  the  material  allegations 
of  the  petition  intended  to  be  controverted, 
has  worked  a  total  ciuvnge  in  the  principles 
of  pleading.  The  defendant,  by  merely 
denying  the  allegations  in  the  x'laintiff's. 
petition,  can  try  only  such  questions  of 
fact  as  are  necessary  to  sustain  the  plain- 


tiff's case.  If  he  intends  to  rely  upon  new 
matter  which  goes  to  defeat  or  avoid  the 
plaintiff's  action,  he  must  set  forth,  in 
clear  and  precise  terms,  each  substantial 
fact  intended  to  be  so  relied  on.  It  fol- 
lows, that,  whenever  a  defendant  intends 
to  rest  his  defence  upon  any  fact  wliicli  is 
not  included  in  the  allegations  necessary 
to  the  support  of  the  plaintiff's  case,  he 
must  set  it  out  according  tg  the  statute, 
or  else  he  will  be  precluded  from  giving 
evidence  of  it  on  the  trial." 

-  Greenfield  v.  Mass.  Mut.  Life  Ins. 
Co.,  47  N.  Y.  430,  437,  per  Grover  J. ; 
Wheeler  v.  Billings,  38  N.  Y.  263. 

3  Weaver  v.  Barden,  49  N.  Y.  286, 
297  :  "  To  establish  a  cause  of  action,  the 
plaintiff  was  bound  to  prove  that  he  was 
the  legal  owner  of  the  stock,  or  was 
equitably  entitled  to  it  as  against  the 
defendant.  Under  this  answer,  the  de- 
fendant had  a  right  to  give  evidence 
controverting  any  fact  necessary  to  be 
established  by  the  plaintiff  to  authorize  a 
reconve\'ance,  but  not  to  prove  a  defence 
founded  upon  new  matter."  Recapitulat- 
ing the  facts  actually  proved  by  the 
plaintiff,  —  namely,  tiiose  alleged  in  the 
complaint  as  above  slated,  and  that  W. 


ISSUES   FORMED    BY   THE   GENERAL   DENIAL.  695 

§  664.  A  general  denial  being  pleaded  in  an  action  on  a  non- 
negotiable  note  brought  against  the  maker  thereof,  evidence 
designed  to  show  a  want  of  consideration  was  rejected  at  the 
trial.  The  New  York  Supreme  Court,  in  reviewing  this  ruling, 
very  properly  held  that  this  defence  may  be  proved  under  an 
answer  of  denial  in  actions  upon  all  contracts  which  do  not  im- 
port a  consideration.!  While  the  very  point  decided,  that  evi- 
dence of  a  want  of  consideration  could  be  admitted,  is  undoubt- 
edly correct,  the  opinion  as  a  whole  is  very  careless  and 
inaccurate,  and  the  general  criterion  which  it  lays  down  is  clearly 
erroneous.  There  are  many  classes  of  defences  which  show  that 
a  cause  of  action  never  existed,  and  which  cannot  be  proved 
under  the  general  denial,  but  must  be  pleaded  ;  as,  for  example, 
illegality,  fraud,  duress,  and  the  like.  The  learned  judge  was 
entirely  misled  by  the  analogies  drawn  from  the  ancient  practice. 
The  general  denial  puts  in  issue  the  facts,  which,  if  true,  consti- 
tute a  prima  facie  cause  of  action.  A  consideration  is,  in  general, 
one  of  these  facts  in  actions  upon  contract.  When  these  facts 
are  admitted,  but  by  reason  of  some  extraneous  features  or  ele- 
ments affecting  them  they  do  not  produce  the  otherwise  necessary 
result,  that  element  which  constitutes  the  defence,  and  which 
destroys  the  prima  facie  legal  aspect  of  the  facts,  is  certainly  not 
put  in  issue  by  the  general  denial :  it  is  new  matter,  and  must 
be  specially  pleaded. 

held  the  stock  as  a  trustee  for  the  plain-  tion  could  always  be  shown  under  the 
tiff,  —  lie  continued  :  "This  established  the  general  issue.  Any  thing  which  tended 
plaintiff's  right  to  the  stock  as  against  the  to  show  that  a  party  to  an  instrument 
defendant,  unless  he  was  a  bona  fide  jjur-  never  had  a  cause  of  action  against  the 
chaser  from  W.  To  meet  this  case,  the  other  party  to  it  was  always  competent 
defendant  offered  to  prove  in  substance  under  the  general  denial  of  the  cause  of 
that  he  iw(s  a  ?)on« /jV/e  purchaser  from  W.  action  alleged,  and  is  so  still.  The  rule 
The  Special  Term  held,  against  plaintiff's  does  not  apply  to  the  holder  of  negotiable 
objection,  that  this  was  admissible  under  paper  who  takes  it  in  good  faith.  But 
the  answer.  This  was  error.  Under  the  this  is  not  a  negotiable  note.  A  general 
general  denial,  the  defendant  could  not  denial  now,  like  the  general  issue  under 
introduce  evidence  tending  to  show  a  de-  the  former  practice,  puts  in  issue  the  ex- 
fence  founded  upon  new  matter,  but  such  istence,  at  any  time,  of  the  cause  of  ac- 
only  as  tended  to  disprove  any  fact  that  tion  alleged  in  the  complaint,  and  admits 
the  plaintiff  must  prove  to  sustain  his  of  evidence  tending  to  establish  such  de- 
case."  The  court,  however,  did  not  pass  fence.  If  a  cause  of  action  lias  once  ac- 
upon  the  question  thus  discussed  by  crued  or  existed,  and  has  been  satisfied 
Grover  J.  :  the  decision  was  placed  upon  or  defeated  by  reason  of  something  which 
a  different  ground ;  viz.,  that  defendant  has  occurred  subsequently,  that  is  new 
was  not  a  homt  fide  purchaser.  matter,  which  must  be  pleaded  in  order  to 

'  Evans  v.  Williams,  60  Barb.  346,  per  render  it  competent  as  evidence." 
T.  A.  Johnson  J. :  "  Want  of  considera- 


696  CIVIL   REMEDIER. 

§  665.  The  courts  of  one  State  alone  dissent  from  this  course 
of  judicial  decision,  and  give  to  the  general  denial  of  the  code 
something  of  the  comprehensive  operation  which  belonged  to  the 
general  issues  of  non-assumpsit  and  nil  debet  at  the  common  law. 
The  construction  adopted  in  California  seems  to  regard  the  gen- 
eral denial  —  certainly  in  actions  upon  contract  —  as  admitting 
any  defences  which  show  that  there  is  no  subsisting  cause  of 
action  at  the  time  of  the  commencement  of  the  suit.  At  least 
the  defence  of  payment  is  thus  held  admissible  ;  and,  if  it  be  so, 
other  similar  defences,  such  as  release,  accord  and  satisfaction, 
and  the  like,  cannot  with  consistency  be  rejected.  This  doctrine 
of  the  California  courts  is  stated  and  illustrated  in  the  following 
cases:  In  an  action  upon  contract  the  complaint  contained  three 
counts,  each  in  the  form  of  the  common-law  indebitatus  assumpsit. 
The  answer  was  a  general  denial.  Upon  these  issues  the  court 
said :  "  In  each  count  of  the  complaint  there  is  an  averment  that 
on,  &c.,  the  defendant  was  indebted  to  the  plaintiff  in  a  specified 
sum,  and  promised  to  pay  it,  but  therein  has  made  default.  The 
answer  contained  a  general  denial,  which  made  it  incumbent  on 
the  plaintiff  to  prove  a  subsisting  indebtedness  from  the  defend- 
ant to  the  plaintiff  at  the  time  of  the  institution  of  the  suit. 
Under  this  denial,  it  would  have  been  competent  for  the  defend- 
ant to  prove  pa3ment.^  For  the  same  reason,  it  is  competent  to 
show  that  the  plaintiff  had  transferred  the  demand,  and  that  the 
defendant,  therefore,  was  not  indebted  to  him."^  In  another 
case  upon  a  promissory  note  the  complaint  v/as  in  the  usual  form, 
setting  out  the  note,  and  alleging  that  it  had  not  been  paid,  and 
tliat  there  was  due  upon  it  a  specified  sum,  for  which  judgment 
was  demanded.  The  answer  was  the  general  denial.  "  The 
question  is,"  said  the  court,  "  whether  the  general  denial  presents 
any  issue  of  fact.  In  Frisch  v.  Caler,^  this  question  was  fully 
considered.  The  statute  then  in  force  required  a  replication  to 
new  matter  in  the  answer.  The  answer  averred  that  the  note  in 
suit  had  been  paid  by  the  defendant ;  and  it  was  contended  that 
that  averment  was  admitted  because  of  the  failure  on  the  part  of 
the  plaintiff  to  file  a  replication  denying  it.     But  the  court  held 

1  Frisch  v.  Caler,  21   Cal.  71 ;  Brown  294,  209,  300,  per  Crockett  J. ;  and  see 

V.  Orr,  29  Cal.  Vl);  Davanay  v.  Eggen-  especially  Fairchild  v.  Amsbaugh,  22  Cal. 

hoff,  43  Cal.  395.  572,  574 ;  Brooks  v.  Chilton,  6  Cal.  640. 

'^  Wetmore  v.  San  Francisco,  44  Cal. 


ISSUES   FORMED    BY   THE   GENERAL   DENIAL.  697 

that  it  was  not  new  matter  ;  that  the  failure  to  pay  the  note  con- 
stituted the  breach,  and  must  be  alleged  ;  and  that  the  allegation 
in  the  answer  —  that  it  had  been  paid  —  was  only  a  traverse  of 
the  allegation  in  the  complaint  that  it  had  not  been  paid.  (See 
also  Brown  v.  Orr.)  ^  The  doctrine  then  laid  down  has  not  since 
been  departed  from,  so  far  as  we  are  aware,  except  in  the  case  of 
Hook  V.  White  ;  ^  and  that  case,  so  far  as  it  holds  that  the  allega- 
tion in  the  complaint  that  the  note  remains  unpaid  is  immaterial, 
and  that  a  denial  of  the  allegation  does  not  put  any  fact  in  issue, 
ought,  in  our  opinion,  to  be  overruled.  The  general  denial  in  this 
case  puts  in  issue  the  averment  of  the  complaint,  that  the  prom- 
issory note  remained  due  and  unpaid."  ^  This  decision  falls  far 
short  of  sustaining  the  sweeping  doctrine  of  Mr.  Justice  Crockett, 
in  the  preceding  case  of  Wetmore  v.  San  Francisco,  as  to  the  effect 
of  the  general  denial.  When  the  opinion  of  Mr.  Justice  Rhodes 
is  analyzed,  it  does  not  in  fact  lay  down  any  principle  different 
from  that  maintained  by  the  cases  cited  from  the  courts  of  other 
States.  It  simply  asserts  that  the  general  denial  puts  in  issue  the 
allegations  of  the  complaint,  and  that  the  negative  averment  of 
non-payment,  when  traversed  in  this  manner,  produces  a  com- 
plete issue,  under  which  evidence  of  payment  may  be  offered. 
This  is  very  far  from  holding,  with  Crockett  J.,  that  the  defence 
of  payment  is  admissible  under  the  general  denial  in  all  cases. 

§  666.  The  foregoing  extracts  from  the  judgments  of  so  many 
courts  leave  little  room  and  little  need  for  any  addition  by  way 
of  comments.  The  unanimity  of  opinion  in  respect  to  the  funda- 
mental principles  of  pleading  embodied  in  the  codes  is  almost  abso- 
lute ;  and  this  principle  has  been  so  clearly  formulated  by  several  of 
the  judges,  that  no  difficulty  ought  to  arise  in  its  practical  appli- 
cation. The  office  of  the  general  denial,  like  that  of  the  old  trav- 
erses, is  twofold :  it  forces  the  j)laintiff  to  prove  all  the  material 
allegations  of  fact  contained  in  his  complaint  or  petition,  and  con- 
stituting his  cause  of  action,  by  sufficient  evidence  at  least  to 
make  out  a  prima  facie  case ;  it  also  permits  the  defendant  to 
offer  any  and  all  legal  evidence  which  controverts  those  aver- 
ments, and  contradicts  the  plaintiff's  proofs.  It  is  clear  that  no 
exact  statement  can  be  made  defining  with  universal  precision 
what  particular  issues  the  general  denial  raises  in  all  possible 

1  Brown  v.  Orr,  29  Cal.  120.  3  Davanay  v.  Eggenhoff,  43   Cal.  395, 

2  Hook  V.  White,  36  Cal.  299.  397,  per  Rhodes  J. 


698  CIVIL   REMEDIES. 

cases,  and  what  particular  defences  it  admits  ;  and  in  this  respect 
it  diifers  from  the  general  issue.  As  a  result  of  the  common-law 
methods  of  pleading,  and  the  uniformity  of  averment  necessarily 
used  in  all  actions  of  the  same  class,  the  operation  of  the  general 
issue  in  every  suit  was  exactly  defined ;  and  this  was  especially 
so  after  the  rules  made  in  4th  William  IV.  (1834).  Certain 
averments,  and  none  others,  of  the  declaration,  were  put  in  issue 
by  it ;  certain  defences,  and  none  others,  were  admissible  under 
it.  This  precise  rule  cannot  be  laid  down  in  respect  of  the  gen- 
eral denial,  because  there  is  no  necessary  uniformity  in  the  aver- 
i^ents  of  complaints  or  petitions  in  actions  of  the  same  kind 
brought  on  the  same  substantial  facts,  and  seeking  the  same 
relief.  As  the  general  denial  jDuts  in  issue  all  the  material  allega- 
tions made  by  the  plaintiff,  and  admits  all  evidence  contradicting 
them,  what  issues  it  actually  raises,  and  what  defences  it  actually 
admits,  in  a  given  case,  must  depend  upon  the  frame  of  the  com- 
plaint or  petition,  and  upon  the  number  and  nature  of  the  allega- 
tions which  the  plaintiff  has  inserted  therein.  It  could  be  said  of 
the  general  issue  in  all  actions  upon  contract,  —  assumpsit,  debt, 
covenant,  —  after  the  rules  of  Hilary  Term,  1834,  that  the  defence 
of  payment  was  never  admissible  under  it.  If  we  would  speak 
with  perfect  accuracy,  such  language  cannot  be  adopted  as  the 
expression  of  a  universal  rule  in  respect  of  the  general  denial ; 
for  the  plaintiff  may  so  shape  his  pleading,  and  introduce  into  it 
such  a  negative  averment  of  non-payment,  that  the  proof  of  pay- 
ment would  be  simply  supporting  the  general  denials  of  the 
answer.  Several  cases  already  cited  sufficiently  sustain  the 
correctness  of  this  position ;  and  others,  to  be  hereafter  more 
particularly  referred  to  in  a  subsequent  portion  of  this  section,  and 
in  the  next  section  under  the  head  of  Payment,  will  furnish 
various  examples  of  this  feature  of  distinction  between  the  gen- 
eral denial  and  the  general  issue.^  Additional  cases,  bearing 
upon  the  nature  and  effect  of  the  general  denial,  are  collected  in 
the  foot-note .2 

1  See  Quin  v.  Lloyd,  41  N.  Y.  349;  653;  Schermerhorn  v.  Van  Allen,  ISBarb. 
Marley  v.  Smith,  4  Kans.  183;  Friscli  v.  29  ;  Hendricks  v.  Decker,  35  Barb.  298; 
Caler,  21  Cal.  71 ;  White  v.  Smith,  46  Perkins  v.  Ermel,  2  Kans.  325 ;  Adams 
N.  Y.  418  ;  Van  Gieson  v.  Van  Gieson,  10  Ex.  Co.  v.  Darnell,  31  Ind.  20  ;  Lafayette, 
N.  Y.  316.  &c.  R.  R.  V.  Ehman,  30  Ind.  83 ;  Watkins 

2  Button  V.  jMcCauley,  38  Barb.  413  ;  v.  J(mes,  28  Ind.  12;  Frybarger  v.  Coke- 
Schular  v.  Hudson  River  R.  R.,  38  Barb,  fair,  17  lud.  404  ;  Bingham  v  Kimball,  17 


ISSUES   FORMED   BY  THE   GENERAL   DENIAL.  699 

§  667.  As  the  general  denial  forms  an  issue  upon  the  entire 
cause  of  action  set  up  by  the  plaintiff,  and  forces  him  to  prove 
the  same  substantially  as  alleged,  the  question  becomes  one  of 
great  practical  importance  :  What  are  the  averments  in  the  com- 
plaint or  petition  which  are  thus  negatived,  and  which  must  be 
established  by  sufficient  proof  on  the  trial  ?  The  full  answer  to 
this  question  belongs  rather  to  a  discussion  of  the  requisites  of  the 
plaintiff's  than  of  the  defendant's  pleading,  and  will  be  found  in 
Chapter  Third.  The  universally  accepted  rule  is,  that  only  those 
averments  of  the  complaint  or  petition  which  are  material  and 
proper  are  put  in  issue  by  a  denial  either  general  or  specific  in  its 
form.  "  Material  "  or  "  proper  "  are  not,  however,  synonymous 
with  "  necessary."  A  plaintiff  may  insert  in  his  pleading  allega- 
tions which  are  unnecessary  in  that  position,  and  which  are  not 
in  conformity  with  the  perfect  logic  of  the  system,  but  which, 
when  once  introduced,  become  "  material,"  so  that  an  issue  is 
formed  upon  them  by  a  general  or  a  specific  denial.  The  in- 
stance just  mentioned,  of  an  allegation  of  non-payment  in  the 
complaint  met  by  a  denial  in  the  answer,  is  a  familiar  example  of 
such  averments,  material,  although  not  necessary. 

§  668.  It  is  an  elementary  doctrine  of  pleading  under  the  new 
system,  that  only  the  issuable  facts  —  that  is,  the  conclusions  of 
fact  which  are  essential  to  the  existence  of  the  cause  of  action,  or 
upon  Avhich  the  right  to  relief  wholly  or  partially  depends  in 
equitable  suits  —  are  material,  and  are  therefore  put  in  issue  by 
the  denial ;  and  the  converse  of  the  proposition  is  true,  that  the 
averments  of  mere  evidentiary  facts,  if  inserted  in  the  pleading, 
are  not  thus  controverted.  Although  this  doctrine  is  elementary, 
and  appears  so  simple  in  the  statement,  it  is  nevertheless  some- 
times exceedingly  difficult  of  application  in  practice  ;  and  the 
difficulty  is  enhanced  by  the  frequent  inconsistencies  of  courts  in 
dealing  with  it.  While  the  general  principle,  as  just  stated, 
is  constantly  affirmed,  yet  there  are  numerous  instances  of 
particular  causes  of  action  in  which  the  plaintiffs  are  required  to 

Ind.  396;  Norris  v.   Amos,  15  Ind.   365;  356;  Aramerman  v.  Crosby,  26  Ind.  451  ; 

Hawkins  v.  Borland,  14  Cal.  413;  God-  Johnson  i;.  Cuddington,  35  Ind.  43  ;  Brett 

dard    v.   Fulton,    21    Cal.   430;    City  of  y.  First  Univ.  Soc.,^63  Barb.  610,  616  ;  Cat- 

Evansville  v.  Evans,  37   Ind.   229,   236;  linw.  Gunter,lDuer,  253,  265;  Robinson  y. 

Hier  v.  Grant,  47  N.  Y.  278;  Schaus  v.  Frost,  14  Barb.  536,  541 ;  Texier  w.  Gouin, 

Manhattan  Gas-Light   Co.,    14  Abb.  Pr.  5  Duer,  389,  391 ;  Dyson  f.  Ream,  9  Iowa, 

(n.  s.)   371 ;  Hunter  v.  Mathis,   40   lad.  51 ;  Scheer  v.  Keown,  34  Wise.  349,  356. 


700  CIVIL   REMEDIES. 

set  out  in  detail  matter  which  is  plainly  evidentiarjs  and  which  is 
onl}^  of  value  as  leading  the  mind  to  a  conviction  tliat  the  final  or 
issuable  fact,  which  is  one  necessary  element  of  the  right  of  ac- 
tion, exists.  In  other  words,  the  courts  have  often,  while  deal- 
ing with  particular  cases,  violated  the  elementary  principle  which 
applies,  or  should  apply,  to  all  cases ;  and  the  result  is  confusion 
and  uncertainty.  It  is  possible,  however,  to  distinguish  between 
issuable,  material  facts,  and  evidentiary  facts,  by  an  unfailing  crite- 
rion. In  all  particular  instances  of  the  same  cause  of  action  based 
upon  the  same  circumstances,  —  that  is,  arising  from  the  same 
primary  right  in  the  plaintiff,  broken  by  the  same  delict  or  wrong 
on  the  part  of  the  defendant,  —  the  material  or  issuable  facts  which 
are  the  essential  elements  of  the  right  of  action  must  be  the 
same :  immaterial  circumstances,  the  time,  place,  amounts,  values, 
extent  of  damages,  parties,  and  the  like,  will  be  different ;  but 
the  substantial  elements  of  the  cause  of  action,  the  facts  which 
constitute  it,  must  in  every  instance  of  the  same  species  be  the 
same.  On  the  other  hand,  the  evidentiary  matter*  the  mass  of 
subordinate  facts  and  circumstances  which  must  be  actually 
proved,  and  from  which  the  above-described  essential  elements 
result  as  inferences  more  or  less  direct,  may  vary  with  each  par- 
ticular instance  of  the  same  species  of  cause  of  action. .  The  for- 
mer class  of  facts  are  material,  issuable,  and,  when  the  theory  of 
pleading  in  legal  actions  is  strictly  observed,  they  alone  should 
be  averred,  and  they  alone  should  be  treated  as  put  in  issue  by 
the  denials,  general  or  specific:  the  second  class  of  facts  —  the 
proper  evidentiary  matter  —  should  not  be  pleaded,  and,  if  im- 
properly averred,  should  not  be  regarded  as  put  in  issue  by  the 
denials  of  the  defendant.  This  is  the  true  tlieory,  and  is  again 
and  again  commended  by  the  courts  ;  but,  at  the  same  time,  it  is 
constantly  violated  by  the  same  courts  in  their  requirements  in 
respect  to  the  pleading  in  certain  species  of  causes  of  action. 
Another  source  of  difficult}^  in  applying  the  elementary  doctrine 
is  found  in  the  circumstance,  that  not  infrequently  the  material, 
issuable  fact  which  must  be  averred,  and  which  is  put  in  issue,  is 
identical  with  the  fact  Avhich  must  be  actually  given  in  evidence. 
In  respect  of  such  matters  there  are  no  steps  and  grades,  and 
processes  of  combination  and  deduction,  by  which  the  issuable  fact 
alleged  is  inferred  from  the  evidentiary  fact  proved.  The  two 
are  one  and  the  same ;  and  thus  matter  which  is  truly  evidence 


DEFENCES   ADMITTED    UNDER   A    DENIAL.  701 

must  in  such  case  be  alleged,  and  matter  which  is  the  proper  sub- 
ject of  allegation  must  be  directly  given  in  evidence. 

§  669.  Another  and  the  final  element  which  should  belong  to 
the  averments  in  the  complaint,  in  order  that  an  issue  may  be 
raised  thereon  by  the  denial,  is,  that  they  must  be  of  fact,  and  not 
of  law.  This  particular  topic  has  already  been  treated  of  in  a 
former  subdivision  of  the  present  section.  The  reformed  system 
'of  pleading,  unlike  that  of  the  common  law,  authorizes  no  issues 
to  be  raised  by  allegations  of  legal  conclusions,  and  denials  of  the 
same.  Although  there  are  traces  to  be  found  in  some  of  the 
cases  of  the  ancient  forms  of  averment  in  indebitatus  assumjjsit 
and  in  debt^  and  of  answers  resembling  the  plea  of  7iil  debet,  yet 
all  the  decisions  of  present  authority  unite  in  theoretically  con- 
demning such  a  mode  of  pleading.  I  need  not,  however,  dwell 
upon  this  particular  rule,  nor  again  refer  to  cases  which  have 
been  so  recently  cited.  An  allegation  of  law  in  the  plaintiff's 
pleading  is  not  controverted  by  the  defendant's  denial  :  no  issue 
is  formed  thereby  under  which  evidence  can  be  admitted  from 
either  party. 

§  670.  Second.  The  General  Nature  of  the  Evidence  which  may 
be  admitted,  and  the  Defences  which  may  be  proved,  uyider  the 
Denials  of  the  Answer.  The  judicial  opinions  quoted  under  the 
preceding  head  sufficiently  establish  the  principle  which  controls 
all  the  questions  embraced  under  the  present,  and  the  cases  to  be 
cited  in  the  following  one  will  illustrate  the  application  of  that 
principle.  In  fact,  it  is  so  intimately  bound  up  with  the  subject 
last  discussed,  that  it  has  already  been  stated  and  explained.  I 
shall,  however,  recapitulate  and  restate  this  fundamental  doctrine. 
The  material  allegations  of  the  complaint  or  petition,  when  denied 
either  generally  or  specifically,  determine  in  each  case  what  evi- 
dence and  what  defences  may  be  given  and  established  by  the 
defendant.  It  is  impossible  to  say  of  any  class  of  cases,  that  such 
or  such  evidence  can  or  cannot  be  offered  as  a  matter  of  certain 
rule,  or  that  such  or  such  a  defence  can  or  cannot  be  set  up. 
As  the  plaintiff'  is  ])ound  by  no  inflexible  rule  as  to  the  form  of 
his  pleading,  and  as  to  the  averments  he  may  choose  to  introduce 
into  it,  so  he  can  widen  or  contract  within  distant  extremes  the 
extent  and  nature  of  the  evidence  and  defences  which  may  be  in- 
terposed by  the  defendant  under  a  denial.^  As  the  denial  ]3uts 
1  See  Cliicago,  &c.  R.  R.  v.  West,  37  Ind,  211,  215. 


702  CIVIL   REMEDIES. 

in  issue  all  the  material  allegations  of  fact  made  by  the  plaintiff, 
whether  originally  necessary  or  not,  he  is  at  liberty  to  introduce 
all  and  any  legal  evidence  which  tends  to  sustain  those  allega- 
tions. On  the  other  hand,  under  the  same  issue,  the  defendant 
is  entitled  to  offer  any  evidence  which  tends. to  contradict  that  of 
the  plaintiff,  and  to  deny,  disprove,  and  overthrow  his  material 
averments  of  fact.  This  is  the  fundamental  and  most  compre- 
hensive doctrine  of  pleading  embraced  in  the  new  procedure^ 
and  it  of  course  determines  the  nature  of  the  defences  which  may 
be  set  up  under  a  general  denial.  It  is  to  be  observed  —  although 
the  remark  is  perhaps  unnecessary  —  that  the  defendant  may  in 
this  manner  attack  any  material  allegation  of  fact,  and  thus,  if 
possible,  defeat  the  recovery,  while  the  others  are  left  unanswered 
or  unassailed. 

§  671.  As  the  allegations  of  the  complaint  or  petition  contro- 
verted by  the  denials  of  the  answer  determine  the  nature  and 
extent  of  the  evidence  admissible  under  such  denials,  it  follows 
that  this  evidence  may  be  sometimes  negative  and  sometimes 
affirmative.  Herein  lies  the  source  of  much  confusion  and  uncer- 
tainty as  to  the  character  of  the  defendant's  proofs  and  defences, 
and  as  to  their  admissibility  under  the  general  denial.  Evidence 
in  its  nature  affirmative  is  often  confounded  with  defences  which 
are  essentially  affirmative  and  in  avoidance  of  the  plaintiff's  cause 
of  action,  and  is  therefore  mistakenly  regarded  as  new  matter  re- 
quiiing  to  be  specially  pleaded,  although  its  effect  upon  the  issues 
is  strictly  negative,  and  it  is  entirely  admissible  under  an  answer 
of  denial.  In  other  words,  in  order  that  evidence  may  be  proved 
under  a  denial,  it  need  not  be  in  its  own  nature  negative :  affir- 
mative evidence  may  often  be  used  to  contradict  an  allegation  of 
the  complaint,  and  may  therefore  be  proved  to  maintain  the  nega- 
tive issue  raised  by  the  defendant's  denials.  One  or  two  familiar 
examples  will  sufficiently  illustrate  this  proposition.  In  certain 
actions,  property  in  the  plaintiff,  in  respect  of  the  goods  which  are 
the  subject-matter  of  the  controversy,  is  an  essential  element  of 
his  claim.  His  complaint,  therefore,  avers  property  in  himself: 
the  allegation  is  material,  and  is,  of  course,  put  in  issue  by  the 
general  or  specific  denial.  To  maintain  this  issue  on  his  part,  the 
plaintiff  may  give  evidence  tending  to  show  that  he  is  the  abso- 
lute owner,  or  has  the  requisite  qualified  j^roperty.  The  defend- 
ant may  controvert  this  fact  in  two  modes.     He  may  simply 


DEFENCES  ADMITTED  UNDER  A  DENIAL.  708 

contradict  and  destroy  the  effect  of  the  plaintiff's  proofs,  and  in 
this  purely  negative  manner  procure,  if  possible,  a  decision  in  his 
own  favor  upon  this  issue.  The  result  would  be  a  defeat  of  the 
plaintiff's  recovery  by  his  failure  to  maintain  the  averment  of  his 
pleading  :  but  the  jury  or  court  would  not  be  called  upon  to  find 
that  the  property  was  in  any  other  person  ;  the  decision  would 
simply  be,  that  the  plaintiff  had  not  shown  it  to  be  in  himself.  On 
the  other  hand,  the  defendant,  not  attempting  directly  to  deny 
the  testimony  of  the  plaintiff's  w^itnesses,  and  to  overpower  its 
effect  by  directly  contradictory  proofs,  may  introduce  evidence 
tending  to  show  that  the  property  in  the  goods  is,  in  fact,  in  a 
third  person.  This  evidence,  if  convincing,  would  defeat  the 
plaintiff's  recovery.  It  would  be  affirmative  in  its  direct  nature  ; 
but  its  ultimate  effect,  in  the  trial  of  the  issue  raised  by  the  an- 
swer, would  be  to  deny  the  truth  of  the  plaintiff's  averment. 
Such  evidence,  although  immediately  affirmative,  would  still,  for 
the  purpose  of  determining  the  issue  presented  by  the  pleadings, 
be  negative.  Again :  in  an  action  on  a  promissory  note  against 
the  maker  or  indorser,  the  complaint  might  allege  title  in  the 
plaintiff,  and  the  fact  that  he  was  the  owner  and  holder  thereof. 
The  answer  of  denial  would  put  this  averment  in  issue,  as  it 
would  be  material,  and  its  truth  essential  to  the  recovery.  Proof 
by  the  defendant,  that,  prior  to  the  commencement  of  the  action, 
the  plaintiff  had  assigned  the  note  to  a  third  person,  would  be 
affirmative  in  its  immediate  nature,  but  negative  in  its  effect  u2:)on 
the  issue;  for  it  would  controvert  the  truth  of  the  plaintiff's 
allegation.  Cases  cited  under  the  next  subdivision  hold  that  the 
evidence  which  I  have  thus  described  in  both  of  these  examples 
is  admissible  under  the  general  denial. 

§  672.  The  theory  of  the  general  denial  is  completed  by  consid- 
ering what  evidence  cannot  be  given,  and  what  defences  cannot  be 
set  up,  under  it.  This  subject  will  be  discussed  at  large  in  the 
following  section  ;  but  some  reference  to  it  is  appropriate  in  the 
present  connection.  The  codes  divide  defences  into  denials  and 
new  matter.  New  matter  must  be  sj)ecially  pleaded.  Defences 
at  the  common  law  were  separated  into  traverses  general  and 
special,  and  pleas  by  way  of  confession  and  avoidance.  .  The 
general  traverses  were  the  general  issues,  and  special  traverses 
were  denials  of  some  particular  allegation.  The  common-law 
distinction  between  these  classes  of  defences  was  generally  stated 


704  CIVIL   REMEDIES. 

by  the  text-writers  as  follows :  The  general  issue,  when  used  in 
accordance  with  the  original  theory  in.  those  actions  which  ad- 
mitted its  full  efficacy,  put  in  issue  the  entire  cause  of  action, 
and  under  it  the  defendant  was  permitted  to  offer  any  evidence 
and  set  up  any  defence  which  showed  that  the  right  of  action 
never ^  infaat^  existed.  The  plea  by  way  of  confession  and  avoid- 
ance, on  the  other  hand,  did  not  deny  the  facts  from  which  the 
cause  of  action  arose.  It  admitted  or  "  confessed  "  that  a  cause 
of  action  once  existed  as  averred,  and  set  up  other  and  subse- 
quently occurring  facts  which  showed  that  the  right  after  it  had 
occurred  had  been  in  some  manner  discharged,  satisfied,  or 
defeated.  Is  it  possible  to  draw  the  same  distinction  between 
the  general  denial  and  the  new  matter  of  the  code  ?  I  answer, 
It  is  not.  Such  a  distinction,  although  correct  in  many  in- 
stances, is  not  true  absolutely.  One  reason  for  this  is,  that  the 
plaintiff  may  so  frame  his  complaint  or  petition,  may  insert  in  it 
allegations  of  such  a  sort,  that  a  general  denial  Avill  admit  proof 
of  facts  which  would  be  strictly  matter  by  way  of  confession  and 
avoidance  under  the  former  procedure.  Certain  passages  in 
judicial  opinions  which  have  identified  the  "new  matter  "  of  the 
codes  with  the  pleas  by  way  of  confession  and  avoidance  of  the 
common  law,  are,  therefore,  inaccurate :  they  were  written  by 
their  authors  in  forgetfulness  of  the  inherent  difference  between 
the  fixed  forms  of  the  common-law  declarations,  and  the  varying 
forms  of  the  complaints  and  petitions  which  may  properly, 
though  not  perhaps  scientifically,  be  used  under  the  new  system. 
To  illustrate :  Payment  after  breach  of  a  contract,  and  therefore 
after  a  cause  of  action  arose,  is  certainly  matter  by  way  of  con- 
fession and  avoidance  ;  and  yet  a  complaint  may  be  so  drawn 
that  payment  will  not  be  new  matter,  but  will  be  provable  under 
a  general  denial.  Other  examples  might  be  given  ;  but  this  sin- 
gle one  suffices. 

§  673.  The  result  is,  that  the  new  matter  of  the  code  does  not, 
like  the  matter  in  confession  and  avoidance  of  the  common  law, 
depend  upon  the  essential  nature  of  the  cause  of  action  and  of  the 
defence,  but,  like  the  effect  of  the  general  denial,  it  depends  pri- 
marily upon  the  nature  of  the  material  allegations  which  are  em- 
braced in  the  complaint.  Any  facts  which  tend  to  disprove  some 
one  of  these  allegations  may  be  given  in  evidence  under  the 
denial ;  any  fact  which  does  not  thus  directly  tend  to  disprove 


DEFENCES  ADMITTED  UNDER  A  DENIAL.  705 

some  one  or  more  of  these  allegations  cannot  be  given  in  evi- 
dence under  the  denial.  It  follows,  that  if  such  fact  is  in  itself 
a  defence,  or,  in  combination  with  others,  aids  in  establishing  a 
defence,  this  defence  must  be  based  upon  the  assumption,  that,  so 
far  as  it  is  concerned,  all  the  material  allegations  made  by  the 
plaintiff  are  either  admitted  or  proven  to  be  true.  The  facts 
which  constitute  or  aid  in  constituting  such  a  defence  are  "  new 
matter."  In  this  respect  the  new  matter  of.  the  codes  is  analo- 
gous to  the  pleas  by  way  of  confession  and  avoidance  of  the 
common  law,  since  it  does,  in  truth,  confess  and  avoid.  The  two 
definitions  may  now  be  given,  and  their  contrast  will  be  plain. 
A  plea  by  way  of  confession  and  avoidance  admitted  that  the 
cause  of  action  alleged  did  once  exists  and  averred  subsequent 
facts  which  operated  to  discharge  or  satisfy  it.  The  new  matter 
of  the  codes  admits  that  all  the  material  allegations  of  the  com- 
plaint or  petition  are  true,  and  consists  of  facts  not  alleged  therein 
which  destroy  the  right  of  action,  and  defeat  a  recovery.  To  sum 
up  these  conclusions,  the  classification  of  and  distinction  between 
defences  at  the  common  law  depended  upon  the  intrinsic,  essen- 
tial nature  of  the  causes  of  action  and  of  the  defences.  The 
analogous  classification  and  distinction  between  defences  admis- 
sible under  a  denial,  and  those  which  are  new  matter,  in  the  new 
procedure,  depend  primarily  upon  the  structure  of  the  complaint 
or  petition,  and  the  material  averments  of  fact  which  it  contains. 
All  facts  which  directly  tend  to  disprove  any  one  or  more  of 
these  averments  may  be  offered  under  the  general  denial :  all 
facts  which  do  not  thus  directly  tend  to  disprove  some  one  or 
more  of  these  averments,  but  tend  to  establish  a  defence  inde- 
pendently of  them,  cannot  be  offered  under  the  denial ;  they  are 
new  matter,  and  must  be  specially  pleaded.  I  shall  now  apply 
these  general  principles  to  some  particular  instances. 

§  674.  Third.  Some  Particidar  Defences  ivhich  have  heen  held 
Admissible  under  the  Geyieral  Denial.  I  shall  in  this  subdivision 
classify  and  discuss  only  those  cases  in  which  defences  have  been 
held  admissible  :  those  which  have  been  pronounced  inadmissible, 
for  the  reason  that  they  fell  within  the  denomination  of  "  new 
matter,"  will  be  given  in  the  next  succeeding  section.  In  an 
action  by  an  attorney  and  counsellor  to  recover  compensation  for 
professional  services,  the  complaint  stating  the  retainer,  the  ser- 
vices and  their  value,  and  the  answer  being  a  general  denial,  the 

45 


706  CIVIL   REMEDIES. 

plaintiff  proved  the  services,  and  gave  evidence  showing  their 
reasonable  value.  It  was  held  that  the  defendant  might,  under 
his  denial,  show  that  the  services  were  rendered  upon  a  special 
agreement  to  the  effect  that  the  plaintiff  would  look  to  the  recov- 
ery of  costs  from  the  adverse  j)arty  as  his  sole  mode  of  compen- 
sation, and  would  make  no  personal  claim  against  the  defendant.^ 
And  in  a  similar  action  under  the  same  answer  the  defendant 
may  prove  the  plaintiff's  negligence  and  want  of  skill,  by  which 
the  value  of  the  services  was  diminished  or  destroyed.^  In  gen- 
eral, in  actions  to  recover  compensation  for  work  and  labor  upon 
a  quantum  meruit,  the  defendants  may,  under  the  general  denial, 
prove  that  the  work  was  negligently  or  unskilfully  done,  and 
thus  contest  its  value ;  ^  and  may  prove  that  the  plaintiff  had 
assigned  and  transferred  the  demand  before  suit  brought,  for  this 
controverts  the  defendant's  indebtedness  to  him.* 

§  675.  In  actions  for  injuries  to  person  or  property  alleged  to 
have  resulted  from  the  defendant's  negligence,  he  may  prove 
under  a  general  denial  that  the  wrong  was  caused  by  the  negli- 
gence of  third  persons  not  agents  of  the  defendant,  and  for  whom 
he  was  not  responsible ;  ^  or  may  prove  contributory  negligence 
of   the   plaintiff.^     In   accordance    with    the   principle    of   these 

>i  Schermerhorn  v.  Van  Allen,  18  Barb.  2  Bridges  v.  Paige,  13  Cal.  640,  641. 
29,  per  Parker  J. :  "  The  evidence  was  ^  Raymond  v.  Richardson,  4  E.  D. 
improperly  excluded.  Under  a  general  Smith,  171.  But  under  a  mere  denial  of 
allegation  of  indebtedness,  the  plaintiff  the  value,  the  defendant  cannot  show  that 
had  proved  certain  services  rendered  and  the  services  were  not  rendered.  Van 
their  value.  It  was  surely  competent  for  Dyke  v.  Maguire,  57  N.  Y.  429. 
the  defendant,  under  a  denial  of  such  in-  ■*  Wetmore  v.  San  Francisco,  44  Cal. 
debtedness,  to  prove  that  he  never  in-  294,  299.  And  in  an  action  for  goods  sold 
curred  or  owed  the  debt.  He  had  a  right  and  delivered,  the  defendant  may  show 
to  prove  that  the  services  were  rendered  that  the  plaintiff  acted  as  agent  for  another 
as  a  gratuity,  or  that  the  plaintift' himself  person,  whose  name  was  disclosed,  and 
had  fixed  a  less  price  for  their  value  than  who  was  tlie  actual  vendor.  IVlerritt  v. 
he  claimed  to  recover.  The  services  Briggs,  57  N.  Y.  651. 
being  proved,  the  defendant  might  show  ^  Schular  v.  Hudson  River  R.  R.,  38 
that  they  were  rendered,  not  for  him,  but  Barb.  653;  Schaus  v.  Manhattan  Gas- 
on  the  credit  of  some  other  person,  or  Light  Co.,  14  Abb.  Pr.  n.  s.  371;  Jackson 
that  tlie  plaintiff  himself  undertook  to  run  v.  Feather  River,  &c.  Co.,  14  Cal.  18; 
the  risk  of  the  litigation.  It  was  not  an  Adams  Ex.  Co.  v.  Darnell,  31  Ind.  20.  In 
attempt  to  show  an  extinguisliment  of  this  case,  proof  tiiat  the  goods  were  stolen 
the  indebtedness  by  payment,  release,  or  was  admitted  in  an  action  against  a  corn- 
otherwise  ;  but  it  was  an  offer  to  show  mon  carrier. 

tliat  such  indebtedness  never  existed.  ^  Schaus  v.  Manhattan  Gas  Go.,  14 
The  defendant  was  at  liberty  to  prove  Abb.  Pr.  n.  s.  371  ;  New  Haven,  &c.  Co. 
any  circumstances  tending  to  show  that  v.  Quintard,  6  Abb.  Pr.  n.  s.  128 ;  Indian- 
he  was  never  indebted  at  all,  or  that  he  apolis,  &c.  R.R.  v.  Rutherford,  29  Ind.  82  ; 
owed  le.ss  than  was  claimed."  Jeffersonville,  &c.  R.  R.  v.  Dunlap,  29  Ind. 


DEFENCES  ADMITTED  UNDER  A  DENIAL.  707 

decisions,  the  defence  of  non  superior  is  always  admissible  under 
a  general  denial  of  complaints  which  allege  the  commission  of 
injuries  by  means  of  defendant's  servants,  emploj-ees,  or  agents. 

§  676.  In  an  action  upon  a  promissory  note  or  other  security, 
the  defendant  may  under  the  general  denial  show  an  assignment 
of  the  thing  in  action  to  a  third  person  before  the  suit  was  com- 
menced, since  this  directly  controverts  the  averment  of  title  in 
the  plaintiff  ;i  and  where  the  note  is  non-negotiable,  a  want  of 
consideration  may  be  showed.^  The  general  denial  to  a  com- 
plaint in  the  ordinary  form,  for  goods  alleged  to  have  been  sold 
and  delivered  by  the  plaintiff,  admits  the  defence  that  a  third 
person  who  actually  made  the  sale  was  himself  the  owner  of  the 
goods,  and  was  not  acting  in  the  transaction  as  agent  for  the 
plaintiff ;  for  this  proof  contradicts  the  allegation  of  a  sale  by 
the  plaintiff:^  and  that  the  person  who  actually  bought  the 
goods  in  the  name  of  the  defendant  was  not  the  hitter's  agent, 
but  that  his  prior  authority  had  been  revoked,  and  the  plaintiff 
had  been  notified  thereof ;  for  this  proof  contradicts  the  allega- 
tion of  a  sale  to  the  defendant.^ 

§  677.  In  an  action  for  the  conversion  of  chattels,  the  com- 
plaint of  course  averring  property  in  the  plaintiff,  the  general 
denial  permits  the  defendant  to  show  that  the  property  is  not  in 
the  plaintiff ;  ^  as,  for  example,  by  proving  that  a  third  person  is 

426  ;  Hathawaj^  v.  Toledo,  &c.  R.  R.,  46  The  defence  of  alteration  cannot  be  shown 

Ind  25,  27.     This  decision  is  placed  upon  under  the  general  denial  in  an  action  upon 

the  ground  that  in  Indiana  the  plaintiff  a   written   contract.  Boomer  v.   Koon,  6 

must   allege  and   prove   the  absence   of  N.  Y.  S.  C.  645. 

negligence  on  his  part.  '^  Evans   v.   Williams,  60   Barb.   346  ; 

1  Andrews  I'.  Bond,  16  Barb.  633.  And  Bondurant  v.  Bladen,  19  Ind.  160;  But- 

see  Wetmore  v.  San   Francisco,  44  Cal.  ler  v.   Edgerton,   15   Ind.    15.      But   not 

294,  299.     The  exact  contrary  is  held  in  when  the  consideration  is  presumed,  as  in 

Brett  V.  First  Univ.  Soc,  63  Barb.  610,  a  sealed  instrument  or  negotiable  paper, 

618,  per  Leonard  J.     The  opinion  in  this  Dubois  c.  Hermance,  56  N.  Y.  673,  674; 

case    is,   however,    manifestly    incorrect.  Eldridge  v.  Mather,  2  N.  Y.  157  ;  Weaver 

Under  the  denial  of  "  execution"  in  an  v.  Barden,  49  N.  Y.  286. 
action  on  a  note  or  other  written  contract,  3  Hawkins  v.   Borland,    14    Cal.  413; 

the  defendant  may  prove  that  his  signa-  and  see  Ferguson  v.  Ramsey,  41  Ind.  511, 

ture    was   obtained   by   fraud,   Corby    v.  513. 

Weddle,  57  Mo.  452,  459 ;  or  that  the  in-         *  Hier  v.  Grant,  47  N.  Y.  278  ;  and  see 

strument    was   not    delivered,   Fisher   v.  Day  v.  Wamsley,  33  Ind.  145,  in  which 

Hamilton,  48  Ind.  239.     But  see  Dunning  the  defence  was  admitted  that  the  goods 

V.  Uumbaugli,  36  Iowa,  566,  568.     In  an  were  sold  to  defendant's  wife,  who  had 

action  upon  an  account  stated  for  services,  left  him  without  cause,  against  his  con- 

the  detendant  cannot,  under  the  general  sent,  and  without  his  knowledge, 
denial,  attack  any  of  the  items  in  the  ac-  ^  Robinson  v.  Frost,  14  Barb.  536. 

count,  Warner  v.  Myrick,   16  Minn.   91. 


708  CIVIL    REMEDIES. 

owner  of  the  goods  either  by  an  absolute  or  qualified  title.^  This 
latter  proposition  is,  however,  denied  by  some  of  the  cases,  which 
hold  that  the  defence  of  property  in  a  third  person,  or  in  the 
defendant,  must  be  specially  pleaded.^  Under  a  general  denial  in 
the  same  action,  or  a  specific  denial  of  the  conversion,  any  facts 
may  be  proved  in  defence  which  go  to  show  that  there  was  no 
conversion ;  as,  for  example,  that  tlie  goods  were  lost  without 
fault  of  the  defendant,^  or  were  taken  under  an  execution 
against  the  plaintiff.* 

§  678.  When  the  action  is  brought  to  recover  possession  of 
goods,  the  complaint  alleging  title  or  right  of  possession  in  the 
plaintiff,  the  defendant  may,  under  the  general  denial,  introduce 
evidence  to  show  that  the  plaintiff  is  not  the  owner  nor  entitled 
to  possession  of  the  chattels,^  but  cannot  show  that  the  plain- 
tiff's title  is  fraudulent  and  void  as  against  his  creditors.^'  Nor 
can  the  defendant  in  such  action,  when  the  record  presents  the 
same  issue,  justify  as  sheriff  under  process  against  A.,  and  assert 
that  the  goods  in  controversy  were  the  property  of  A.  fraudu- 
lently transferred' to  the  plaintiff:  this  defence  is  new  matter,  and 
must  be  pleaded." 

§  679.  In  an  action  to  recover  possession  of  land,  if  the  com- 
plaint is  in  the  usual  form,  merely  averring  that  the  plaintiff  is 
owner  in  fee  of  the  premises  described  and  entitled  to  their  pos- 
session, and  that  the  defendant  unlawfully  withholds  the  same, 
the  general  denial  admits  proofs  of  any  thing  that  tends  to  defeat 
the  title  which  the  plaintiff  attempts  to  establish  on  the  trial.^ 

1  Davis  V.  Hoppock,  6  Duer,  254.     He  was  insolvent  in  an  action  for  the  conver- 

may  show  title  in  himself  or  in  a  third  sion  of  a  note  made  by  a  third  person,  and 

person.   Sparks  v.  Heritage,  45  Ind.  66  ;  owned  by  the  plaintiff,  Booth  v.  Powers, 

Kennedy  v.  Shaw,  38  Ind.  474  ;  Farmer  56  N.  Y.  22,  27,  31,  33 ;  Quin  v.  Lloyd, 

V.  Calvert,  44  Ind.  209,  212 ;  Thompson  41  N.  Y.  349. 

V.  Svveetser,  43  Ind.  312 ;  Davis  v.  War-  ^  Caldwell   v.   Bruggerman,   4    Minn, 

field,   38   Ind.    461.     See    also   Jones   v.  270;    Woodworth  v.   Knowlton,   22  Cal. 

Rahilly,  16  Minn.  320,  325.  164.     In  this  case,  defendant  proved  tliat 

-  Dyson  v.  Ream,  9  Iowa,  51  ;  Patter-  the  goods  were  the  property  of  a  third 

son  V.  Clark,  20  Iowa, 429.     The  doctrine  person.     See  also  Sparks  v.  Heritage,  45 

of  these  cases  is  clearly  opposed  to  the  Ind.  66;  Kennedy  v.  Shaw,  38  Ind.  474; 

true  theory  of  the  general  denial.  Farmer  v.    Calvert,  .44    Ind.    209,    212; 

3  Willard  I'.  Giles,  24  Wise.  319,  824.  Thompson  v.  Sweetser,  43  Ind.  312. 

*  McGrew  v.  Armstrong,  5  Kans.  284;  ''  Frisbee  v.  Langworthy,  11  Wise.  375. 

or  that  tlie  goods  were  taken  with  the  ^  Glazer  v.  Ciift,  10  Cal.  303. 

plaintifl's  consent,  Wallace  v.  Robb,  37  ^  Lain  v.   Shcpardson,  23  Wise.  224, 

Iowa,  192, 195;  and  tlie  defendant  in  such  228,  per  Paine  J. :  "Under  such  a  com- 

action  may  prove  any  facts  in  reduction  of  plaint,    the   plaintiff  is  allowed  to  show 

damages ;  as,  for  instance,  that  the  maker  any  title  he  can  ;  and,  from  the  necessities 


DEFENCES    ADMITTED    UNDER    A    DENIAL.  709 

In  some  States  the  defence  of  the  Statute  of  Limitations  may  even 
be  relied  upon  in  this  action  under  a  general  denial ;  ^  but  cannot 
be  in  the  other  States,  whose  codes  expressly  require  the  statute 
to  be  pleaded.^  An  equitable  defence  to  the  action  must,  how- 
ever, as  it  seems,  be  specially  pleaded  ;  ^  and  the  defence  that 
a  deed  to  the  plaintiff  absolute  on  its  face,  under  which  he  claims 
title,  is  only  a  mortgage.* 

§  680.  In  an  action  to  recover  damages  for  a  malicious  prose- 
cution, the  complaint  alleging  malice  and  the  want  of  a  probable 
cause,  the  general  denial  puts  these  averments  in  issue,  and 
admits  any  evidence  going  to  show  a  want  of  malice  and  the 
existence  of  a  probable  cause  ;  as,  for  example,  when  the  com- 
plaint charged  that  the  defendant  wrongfully  procured  the  plain- 
tiff to  be  indicted,  proof  on  the  part  of  the  defendant  that  he 
was  a  grand  juror,  and  that  all  the  acts  complained  of  were  done 
by  him  in  that  capacity,  was  held  proper.^  The  same  principle 
must  apply  to  all  cases  in  which  malice  is  an  essential  ingredient 
in  the  right  of  action,  and  is  alleged  in  the  complaint  or  petition: 
all  facts  tending  to  disprove  the  malice  are  clearly  admissible 
under  the  denial. 

§  681.  When  the  general  denial  is  pleaded  in  an  action  to  com- 
pel the  specific  performance  of  a  contract  to  convey  land,  it  is 

of  the  case,  the  defendant,  under  a  mere  defence  arising  after  the  commencement 
denial,  must  be  allowed  to  prove  any  thing  of  the  action  cannot  be  proved,  but  must 
tending  to  defeat  the  title  which  the  plain-  be  set  up  by  a  supplemental  answer, 
tiflf  attempts  to  establish.  He  cannot  be  McLane  v.  Bovee,  35  Wise.  27,  34. 
bound  to  allege  specific  objections  to  a  title  ^  Stewart  ?;.  Hoag,  12  Ohio  St.  623; 
■which  the  complaint  does  not  disclose,  Lombard  v.  Cowham,  34  Wise.  486,  491. 
and  which  he  may  have  no  knowledge  of  The  court,  in  the  last  case,  held  that,  when 
until  it  is  revealed  by  the  evidence  at  the  the  deed  under  which  the  plaintiff  claims 
trial."  Mather  v.  Hutchinson,  25  Wise,  is  fraudulent  and  void,  that  defence  may 
27  ;  Miles  v.  Lingerman,  24  Ind.  385 ;  be  proved  under  the  general  denial,  be- 
Marshall  o.  Shafter,  32  Cal.  176  ;  the  de-  cause  it  controverts  the  plaintiff's  legal 
fendant  may  prove  title  in  himself,  and  title.  To  this  effect  is  Brown  v.  Freed, 
an  allegation  to  that  effect  in  the  answer  43  Ind.  253,  254-257,  and  cases  cited, 
is  not  new  matter ;  Bruck  v.  Tucker,  42  *  Davenport  v.  Turpin,  43  Cal.  597 ; 
Cal.  346,  351 ;  Bledsoe  v.  Simms,  53  Mo.  Hughes  v.  Davis,  40  Cal.  117.  -'.»:  ^.t  .  .  . 
305,  307.  In  several  States,  by  virtue  of  5  Ammerman  v.  Crosby,  26  Ind.  451; 
the  statute,  every  defence,  legal  or  equi-  Hunter  i\  Mathis,  40  Ind.  356 ;  Rost  v. 
table,  may  be  proved  under  the  general  Harris,  12  Abb.  Pr.  446  ;  Radde  v.  Ruck- 
denial,  Vanduyn  v.  Hepner,  45  Ind.  589,  gaber,  3  Duer,  684  ;  Simpson  r.  McArthur, 
591 ;  Franklin  v.  Kelley,  2  Neb.  79,  113-  16  Abb.  Pr.  302  (n.)  ;  Levy  v.  Brannan, 
115  (fraud).  39  Cal.  485  ;  Trogden  v.  Deckard,  45  Ind. 

1  Nelson   v.   Brodback,   44    Mo.    596  ;  572 ;  but  see  Scheer  v.  Keown,  34  Wise. 

Bledsoe  ??.  Simms,  53  Mo.  305,  307.  349,  an  action  for  false  arrest  and   im- 

'  Orton  V.  Noonan,  25  Wise.  672.     A  prisonment. 


710  CIVIL    REMEDIES. 

held  in  some  cases  that  the  defence  of  the  Statute  of  Frauds  may- 
be relied  upon  ;  for  the  answer  puts  the  existence  of  the  contract 
in  issue :  ^  other  cases,  however,  hold  the  contrary,  and  require 
the  statute  to  be  pleaded,^  And  the  Statute  of  Limitations  may- 
be set  up  under  a  general  denial  in  the  same  action,  whenever  it 
is  not  expressly-  required  by  the  codes,  as  in  certain  States,  to  be 
pleaded.^ 

§  682.  When  the  complaint  in  an  action  upon  a  covenant  of 
warranty,  contained  in  a  deed  of  land  to  the  plaintiff,  alleged  the 
conveyance,  the  covenant,  and  a  breach  thereof  by  means  of  an 
outstanding  paramount  title  and  a   recovery  on  the   same,  the 
general  denial  put  all  these  averments  in  issue,  and  enabled  the 
defendant  to  prove  any  facts  going  to  show  that  there  was  no 
such  paramount  title.^     In  an  action  upon  a  judgment  recovered 
in  another  State,  the  complaint  set  out  the  recovery  of  the  judg- 
ment, and  all  the  other  allegations  necessary  to  constitute  the 
cause  of  action.     The  defendant  pleaded  (1)  the  general  denial ; 
(2)  that  there  was  no  such  record ;  (3)  that  the  judgment  Avas 
obtained  without  any  notice  given  to  the  defendant,  without  ser- 
vice of  process  on  him  or  appearance  hj  him,  he  being  all  the 
time  a  non-resident  of   the  State  in  which  the  judgment   was 
recovered.     All  the  matters  alleged  in  these  two  special  defences 
were,  it  was  held,  embraced  within  the  general  denial,  and  could 
be  proved  under  it :  the  defences  themselves,  according  to  the 
well-settled   practice   in  Indiana,  were  struck   out   on   motion, 
because  they  were  equivalent  to  the  general  denial,  and  redun- 
dant.^ 

1  Hook  V.  Turner,  22  Mo.  333 ;  Wild-  defence  was  equivalent  to  mil  tiel  record, 
balm  V.  Kobidoux,  11  Mo.  659.  proceeded  :  "  The  code  points  out  no  such 

2  Livesey  v.  Livesey,  30  Ind.  398 ;  Os-  distinctive  plea,  but,  in  lieu  of  the  general 
borne  v.  Endicott,  6  Cal.  149.  issue  as  it  stood  at  the  common  law,  sim- 

3  Wiswell  V.  Tefft,  5  Ivans.  263.  ply  authorizes  a  general  or  specific  de- 
*  Rhode   V.  Green,  26  Ind.  83.     In  a     nial.       Here     the    defence    in    question 

creditor's  suit  to   set  aside  the  debtor's  controverts   the   entire   cause   of  action, 

fratidulent  transfer  of  land,  the  grantee  and  tiierefore  amounts  to  a  full  denial  of 

may  prove,  under  the  general  denial,  that  the  complaint ;  and  if,  as  such  denial,  it 

the  land  was  a  homestead,  for  this  rebuts  stood  alone,  it  might  be  sustained.     But 

the  alleged  fraud  charged  by  the  plain-  in  this  instance  it   is  not   well  pleaded, 

tiff,  Ilibben  v.  Soyer,  33  Wise.  319,  322 ;  because  the  defendant,  having  in  his  first 

also  any  facts  showing  absence  of  fraud,  paragraph   pleaded   the    general    denial. 

Summers  v.  Hoover,  42  Ind.  153,  156.  cannot  be  allowed  in  another  paragraph 

5  Westcott     V.    Brown,    13    Ind.    83.  to  plead   wliat  is  in  effect  tlie  same  de- 

Davison  J.,  after  saying  that  the  second  fence." 


DEFENCES    ADMITTED    CINDER    A    DENIAL.  711 


X.   Some  Special  Statutory  Ilules. 

§  683.  This  discussion  will  be  ended  by  a  brief  reference  to 
some  special  statutory  rules,  prescribing  the  effect  and  operation 
of  denials  in  certain  cases,  which  have  been  adopted  in  various 
States.  These  rules  do  not  belong  to  the  general  theory  of 
pleading  embodied  in  the  new  system ;  they  rather  break  the 
symmetry  of  that  theory ;  but  as  they  are  practically  important, 
they  cannot  be  passed  by  without  notice.  In  New  York,  a  stat- 
ute, general  in  its  terms,  requires  the  corporate  existence  of  the 
plaintiff  in  an  action  by  a  corporation  to  be  specifically  denied  if 
at  all  in  the  answer,  and  the  fact  of  its  existence  is  not  put  in 
issue  by  the  general  denial ;  ^  but  this  provision,  it  is  held,  applies 
only  to  domestic  corporations,  so  that  a  foreign  corporation  when 
suing  must  establish  its  existence  when  the  same  is  traversed  by 
a  general  denial.^  In  Indiana  a  sworn  answer  is  made'  necessary 
to  put  in  issue  the  legal  existence  of  alleged  corporations  in 
actions  brought  by  them  ;  but  a  general  denial  verified  complies 
with  this  statutory  requirement,  and  compels  the  plaintiff  to 
prove  its  corporate  character.^  In  Wisconsin,  an  answer  denying 
the  partnership  of  the  plaintiffs  in  an  action  by  a  firm  must  be 
verified,  or  it  forms  no  issue.  An  unverified  denial,  therefore, 
either  general  or  specific,  admits  the  partnership  as  averred.* 

§  684.  In  Indiana,  in  actions  upon  written  instruments  against 
the  original  parties,  makers,  indorsers,  acceptors,  obligors,  and 
the  like,  an  unsworn  general  denial  puts  in  issue  only  the  existence 
of  the  writing,  and  requires  its  production  ;  but  does  not  put  in 
issue  its  execution,  and  therefore  admits  no  evidence  tending  to 
dispute  the  signature  of  the  defendant  or  any  other  facts  in- 
cluded within  the  execution.  If  verified,  the  denial  puts  in 
issue  both  the  execution  and  the  existence.^     The  rule  is  differ- 

1  2  R.  S.  457,  458,  §  3.  A  similar  statute  in  Wisconsin,  it  is  held, 

2  Waterville  Man.  Co.  v.  Bryan,  14  applies  to  both  foreign  and  domestic  cor- 
Barb.  182.  porations,  R.  S.  ch.  148,  §§   3,  11;  Wil- 

^  Chance  ('.  Indianapolis,  &c.  Road  Co.,  liams  Mower,  &c.  Co.  v.  Smith,  33  Wise. 

32  Ind.  472,  disapproving  a  contrary  doc-  530  ;  Central  Bank  v.  Knowlton,  12  Wise, 

trine  in   Cicero,  &c.  Co.  v.  Craighead,  28  624. 

Ind.   274,  and  approving  West  v.  Craw-  ^  Statute  of  1858,  ch.  137,  §  98  ;  Fisk 

fordsville,  &c.  Co.,  19  Ind.  242 ;   Wilhams  v.   Tank,   12   Wise.   27(3,  301;  Martin  v. 

i;.  Franklin, &c.  Assoc, 26  Ind.  310;  Adams  Am.  Ex.  Co.,  19  Wise.  336. 
Ex.  Co.  V.  Hill,  43  Iml.  157  ;  Indianapolis  5  2  R.   S.,  p.  44,  §  80 ;    Stebbins   v. 

F.  &  M  Co.  V.  Herkimer,  46  Ind.  142,  144.  Goldthwaite,  31  lud.  159  ;  Evans  o.  South- 


712  CIVIL   REMEDIES. 

ent,  however,  in  actions  against  the  executors  or  administrators 
of  deceased  parties  to  written  instruments :  the  unverified  gen- 
eral denial  pleaded  by  them  raises  a  complete  issue. ^  An  un- 
verified general  denial  also  admits  tlie  plaintiff's  legal  capacity  to 
sue  in  Indiana.^  A  statute  of  Iowa  enacts,  that,  in  actions  or 
defences  on  written  instruments,  "  the  signature  or  indorsement 
thereto  shall  be  deemed  genuine  and  admitted,  unless  the  party 
whose  signature  it  purports  to  b.e  shall  deny  the  same  under  oath 
in  the  pleading."  In  an  action  upon  a  promissory  note  against 
the  maker,  the  defendant  pleaded  an  unverified  general  denial, 
and  under  it  insisted  as  a  defence  that  he  did  not  sign  the  writ- 
ing as  a  note,  but  executed  it  with  the  supposition  that  it  was  a 
simple  receipt.  This  defence  being  objected,  to  as  inadmissible, 
the  court  held  that  the  statute  referred  only  to  the  genuineness  of 
the  signature,  and  did  not  prohibit  the  defendant  from  showing 
that  he  did  not  execute  such  a  contract  as  the  one  in  suit,  but 
executed  an  entirely  different  instrument,  for  example,  a  receipt, 
and  that  the  same  had  been  altered  into  a  note.^  In  another 
case  upon  a  note  the  petition  set  it  out  in  hcec  verba,  averring 
that  it  was  executed  by  the  defendant.  The  answer  was  verified, 
but  simply  denied  knowledge  or  information  sufficient  to  form  a 
belief  whether  the  allegations  of  the  petition  were  true.  This 
form  of  verified  denial,  it  was  held,  did  not  comply  with  the 
requirements  of  the  statute  in  question,  and  raised  no  issue  in 
respect  of  the  signature.* 

§  685.  The  general  denial,  at  least  when  verified,  cannot  be 
struck  out  as  sham  on  motion.  In  accordance  with  the  settled 
rule  of  the  former  procedure,  the  general  issue  could  not  be 
struck  out  for  such  cause  ;  and  in  this  respect  the  general  denial 
is  its  equivalent.  "  It  gives  the  defendant  the  same  right  to  re- 
quire the  plaintiff  to  establish  by  j)roof  all  the  material  facts 

ern   Turnp.  Co.,  18  Ind.   101 ;    Price   v.  3  Lake  v.  Cruikshank,  31  Iowa,  395. 

Grand  Rapids,  &c.  R.  R.,   18  Ind.   137  ;  *  Hall  v.  .Etna  Man.  Co.,  30  Iowa,  215, 

Hicks  V.  Reigle,  32  Ind.  360.  217,  218.     See  Lyon  v.  Bunn,  6  Iowa,  48, 

1  Cawood's  Administrator  v.  Lee,  32  for  a  construction  of  a  prior  statute 
Ind.  44;  Riser  v.  Snoddy,  7  Ind.  442;  somewhat  different  in  its  language  from 
Mahon's  Administrator  v.  Sawyer,  18  the  one  quoted  in  the  text.  See  also  State 
Ind.  73.  V.  Chamberlin,  54  Mo.  3-38,  that  in  actions 

2  Downs  V.  McCombs,  16  Ind.  211 ;  upon  written  instruments  the  denial  of 
Jones  V.  Cin.  Type  Foundry,  14  Ind.  89  ;  their  execution  must  be  under  oath  in 
Heaston  v.  Cincinnati,  &c.  R.  R.,  16  Ind.  Missouri. 

275 ;  Harrison  v.  Martinsville,  &c.  R.  11., 
16  Ind.  505. 


DEFENCE    OF    NEW    MATTER.  713 

necessary  to  show  his  riglit  to  a  recovery  as  was  given  by  that 
plea  [the  general  issiiel."^  The  same  rule  applies  to  a  denial, 
general  in  form,  of  certain  specified  allegations  constituting  a 
part  of  the  complaint,  and  is  applicable  as  well  to  equitable  as  to 
legal  actions,^  and  to  all  partial  denials,^  and  is  not  restricted 
to  those  which  are  verified.* 


SECTION  FOURTH. 

THE    DEFENCE    OF    NEW    MATTER. 

§  686.  Much  of  what  might  properly  be  included  in  this  section 
has  already  been  necessarily  dwelt  upon  in  discussing  the  defence 
of  denials.  The  two  subjects  so  correlate  and  support  each 
other,  that  the  one  cannot  be  explained  in  full  without,  to  some 
extent,  explaining  the  other  also.  I  shall  not  repeat  the  propo- 
sitions and  definitions  given  in  the  last  section,  but  shall  content 
myself  with  adding  examples  and  illustrations  drawn  from  de- 
cided cases.  The  subject-matter  of  this  section  will  be  distrib- 
uted into  three  subdivisions :  I.  How  defences  of  new  matter 
should  be  pleaded  ;  II.  What  is  new  matter  in  general,  with  a 
particular  reference  to  defences  in  mitigation  and  those  in  abate- 
ment ;  and,  III.  Some  particular  examples  of  new  matter  classi- 
fied and  arranged. 

I.    Hoiv  Defences  of  Neiv  Matter  should  be  pleaded. 

§  687.  A  denial  when  properlj^  pleaded  does  not  state  any 
facts ;  it  simply  denies  facts. ^  A  defence  of  new  matter,  on  the 
other  hand,  does  not  deny  any  facts  ;  it.  assumes  the  averments 
of  the  complaint  or  petition  to  be  true  ;  and  under  the  ancient 
system  a  plea  of  confession  and  avoidance  must  (jive  color  to  these 
averments,  or  it  would  be  fatally  defective.  The  "  giving  color" 
was  simply  the  absence  of  any  denials,  and  the  express  or  silent 
admission  that  the  declaration,  as  far  as  it  went,  told  the  truth.^ 

1  Wayland  v.  Tysen,  45  N.  Y.  281,  5  gge  Town  of  Venice  v.  Breed,  65 
282,  Barb.  597,  603,  per  Mullin  J.,  for  a  state- 

2  Thompson  v.  Erie  R.  R.,  45  N.  Y.  mentof  the  comparative  effects  of  denials 
468,  472.  and  of  new  matter  in  raising  issues. 

3  Claflin  V.  Jaroslauski,  64  Barb.  463.  *>  Under  the  new  procedure,  in  every 
*  Brooks  V.  Chilton,  6  Cal.  640.                 defence  of  new  matter  there  should  be, 


714 


CIVIL    REMEDIES. 


The  defence  of  new  matter  consists,  therefore,  of  facts,  —  positive 
facts  ;  and  these  should  be  averred  as  carefully  and  with  as  much 
detail  as  the  facts  which  constitute  the  cause  of  action  and  are 
alleged  in  the  complaint.  The  defence  of  new  matter  depends 
upon  the  existence  of  facts  from  which  it  results  as  truly  as  the 
cause  of  action  results  from  other  facts.  The  rule  for  setting 
forth  the  facts  which  constitute  the  defence  is,  therefore,  the  same 
as  that  for  setting  forth  the  facts  which  constitute  the  cause  of 
action.  In  each  case,  all  the  material,  issuable  facts  which  make 
up  the  cause  of  action  or  the  defence  must  be  averred,  while  the 
detail  of  mere  evidentiary  matter  should  properly  be  left  to  be 
used  as  proofs  at  the  trial.  I  need  not  further  enlarge  upon  this 
proposition,  but  will  illustrate  it  by  a  few  judicial  decisions. 
Thus  it  is  a  settled  rule,  that,  when  fraud  is  relied  upon  as  a 
defence,  a  general  allegation  charging  fraud  or  a  fraudulent 
intent  will  not  suffice :  all  the  facts  which  the  law  requires  as 
the  elements  of  fraud,  and  all  which  are  claimed  to  be  the  con- 
stituents of  the  fraud  in  the  particular  case,  must  be  averred; 
and  their  absence  may  destroy  the  intended  effect  of  the  plead- 
ing, and  shut  out  all  evidence  in  its  support  at  the  trial. ^ 


either  expressly  or  by  implication,  a  con- 
fession, that,  but  for  such  new  matter,  the 
action  could  be  maintained ;  the  defence 
must  contain  no  denial ;  such  denial 
should  be  pleaded  in  a  separate  defence, 
if  at  all,  Morgan  v.  Hawkeye  Ins.  Co.,  37 
Iowa,  359;  Anson  v.  Dwiglit,  18  Iowa, 
241.  This  is  nothing  more  than  the  sim- 
ple rule  that  two  distinct  defences  should 
not  be  mingled  together. 

1  Jenkins  v.  Long,  19  Ind.  28,  29,  per 
Frazer  J. :  "  At  tlie  common  law,  fraud 
could  be  given  in  evidence  under  the  gen- 
eral issue,  or  under  a  general  plea  of 
fraud.  But,  under  the  code,  fraud  must  be 
specially  pleaded  ;  and  the  answer  of  fraud 
must  contain  all  tlie  elements  necessary 
to  be  proved  to  make  out  the  fraud  :  and 
these  are,  that  the  representation  must  go 
to  a  material  fact ;  must  be  made  under 
such  circumstances  that  the  party  had  a 
right  to  rely  on  it ;  and  it  must  be  false 
to  a  material  extent."  Keller  v.  Johnson, 
11  Ind.  337.  In  an  action  on  notes,  a  do- 
fence  "  that  he  was  induced  to  execute 
the  notes  mentioned  by  tlie  fraud,  covin, 
and  deceit  of  the,"  &c.,  was  held  bad  on 


demurrer.  Capuro  v.  Builders'  Ins.  Co., 
39  Cal.  123  ;  OroviUe,  &c.  R.  R.  v.  Super- 
visors, &c.,  37  Cal.  351;  Kent  v.  Snyder, 
30  Cal.  666 ;  Fankboner  v.  Fankboner, 
20  Ind.  62;  Ham  v.  Greve,  31  Ind.  18,  21, 
a  defence  "that  his  signature  was  ob- 
tained by  the  fraud  of  the  plaintiff,"  with- 
out stating  any  circumstances,  was  held  a 
nullity.  Hale  v.  Walker,  31  Iowa,  344, 
355,  a  defence  which  simply  stated  that 
the  contract  in  suit  "  was  eitlier  false 
or  fraudulently  so  written  or  so  done  by 
mistake,"  admitted  no  proof  of  fraud. 
"  In  order  to  admit  evidence  of  fraud, 
there  should,  under  our  system  of  plead- 
ing, be  at  least  a  general  statement  of  the 
facts  constituting  the  fraud."  Lefler  v. 
Field,  52  N.  Y.  621,  action  for  the  price  of 
barley  bargained  and  sold  :  answer,  that 
the  barley  was  bargained  for  by  defend- 
ant's agent ;  that  he  contracted  to  buy 
plaintiff's  barley,  provided  it  was  mer- 
chantable ;  that  plaintiff  rei)resented  it 
good,  first  quality,  and  merchantable ; 
tliat  the  agent  relied  on  such  representa- 
tions ;  that  the  barley  was  not  merchant- 
able,   which    fact    was    known    to    the 


DEFENCE  OP  NEW  MATTER.  715 

§  688.  Akin  to  the  defence  of  fraud  is  that  of  duress:  the  facts 
constituting  the  duress  must  be  stated,  and  a  mere  general  aver- 
ment will  not  suffice  ;  as,  for  example,  in  a  suit  to  foreclose  a 
mortgage  given  by  a  married  woman  upon  her  own  land,  a  de- 
fence that  "she  was  induced  by  the  coercion  of  her  said  hus- 
band to  execute  the  said  mortgage."  ^  A  defence  of  justification 
in  an  action  for  trespasses  and  other  torts  must  by  appropriate 
averments  identify  the  wrongs  complained  of  with  the  acts  de- 
scribed in  the  answer  and  justified,  or  else  it  will  fail  of  its  pur- 
pose and  be  worthless.^  In  Indiana,  the  defence  of  a  former 
recovery  for  the  same  cause  of  action  between  the  same  parties 
must  set  out  the  record  of  such  former  suit,  or  it  will  be  insuf- 
ficient and  bad  on  demurrer.^  The  following  are  some  further 
illustrations  of  the  general  rule  :  A  defence  of  jettison  by  a  com- 
mon carrier  on  the  water  should  allege  all  the  facts  showing  the 
jettison  to  have  been  necessary  ;  *  a  defence  of  usury  must  nar- 
rate all  the  particulars  of  the  agreement  and  transaction  ;  ^  a 
defence  of  long-continued  user  or  prescription  should  aver  that 
the  possession  or  user  by  the  defendant  was  adverse  ;  ^  and  the 
defence  that  the  plaintiff  is  not  the  real  party  in  interest  must 
state  all  the  facts  which  show  that  legal  conclusion.'^ 

§  689.  When  the  defendant  sets  out  new  matter  which  he  relies 
upon,  not  as  defensive  merely,  but  as  the  basis  of  affirmative 
relief,  either  in  the  form  of  a  strictly  legal  counterclaim  or  of  an 
equitable  cross-demand,  he  becomes  in  truth  an  actor  pro  tanto  : 
his  answer  is  to   that  extent  equivalent   to  a   cause  of  action 

plaintiff.     Although  the  plaintiff  went  to  i  Eichardson  v.   Hittle,   31  Ind.  119; 

trial  on  this  answer  without  prior  objec-  Conn.   Life   Ins.   Co.  v.   McCormick,   45 

tion,  the   Court  of  Appeals  held  it  was  Cal.  580. 

worthless,  since  it  omitted  two  essential  ^  Gallimore   v.    Ammerman,    39    Ind. 

elements  of  the  fraud,  —  ( 1 )  the  plaintiff's  323  ;  Isley  v.  Huber,  45  Ind.  421 ;  Boaz  v. 

intent  to  deceive,  and  (2)  that  defendants  Tate,  43  Ind.  60,  71. 

were   in   fact   deceived.     See  also   Cum-  3  Norris  y.  Amos,  15  Ind.  365  ;  2  R.  S., 

mings  V.  Thompson,  18  Minn.  246,  256,  in  p.  44,  §  78. 

wiiich  the  rule  is  given  as  follows  :  "  A  *  Bentley  v.  Bustard,' 16  B.  Mon.  643. 

general  statement  of  the  matters  of  fact  ^  Manning  v.  Tyler,  21  N.  Y.  567,  568, 

constituting  the  fraud  is  all  that  is  re-  and  cases  cited  ;    Gaston   v.  McLeran,  3 

quired :    it   is   not    necessary   to    charge  Oreg.  389. 

minutely  all  the  circumstances  which  may  ^  White  v.  Spencer,  14  N.  Y.  247. 

conduce    to   prove  the  general  charge."  ''  Raymond   v.  Pritchard,  24  Ind.  318, 

Dubois  V.  Hermance,  56  N.  Y.  673,  674;  and  cases  cited  ;  Ilereth  v.  Smith,  33  Ind. 

Joest  y.  Williams,  42  Ind.  565,  568  ;  Curry  514,  and  cases  cited;  Shafer  v.  Bronen- 

V.  Keyser,30  Ijid.  214  ;  Leigliton  v.  Grant,  berg,  42  Ind.  89,  90. 

20  Minn.  345,  354. 


716  CIVIL  REMEDIES. 

asserted  in  a  complaint  or  petition,  and  is  to  be  p^overned  by  the 
same  rules.  It  must  aver  all  the  material,  issuable  facts  consti- 
tuting the  right  of  action  in  his  favor,  and  must  demand  the 
relief  legal  or  equitable  which  is  sought  to  be  obtained  from  the 
plaintiff.^  The  foregoing  cases  are  given  as  illustrations  and 
examples  of  the  general  doctrine,  and  not  as  exhaustive  of  its 
scope  and  application.  The  rule  applies  to  all  defences  of  new- 
matter.  The  material,  issuable  facts  which  constitute  the  defence 
must  be  averred,  so  that  its  sufficiency  in  law  may  fully  appear 
on  the  record  :  the  facts  themselves,  and  not  the  legal  conclusions 
from  assumed  facts,  are  to  be  stated.^ 

II.    Tlie  General  Nature  of  Xeiv  Matter ;  Defences  in  Mitigation 
of  Damages,  and  in  Abatement. 

§  690.  The  cases  quoted  from  in  the  preceding  section  to  show 
the  judicial  definition  of  the  general  denial  exhibit  also  the  in- 
terpretation put  by  the  courts  upon  the  term  "  new  matter  ;  " 
and  the  decisions  which  will  be  cited  in  the  next  subdivision  of 
this  section  will  show  how  that  interpretation  has  been  applied  in 
a  great  variety  of  particular  instances.  It  would  be  a  needless 
labor  to  repeat  the  extracts  referred  to,  or  the  general  discussion 
of  the  nature  and  properties  of  new  matter.  It  is  elementary 
that  a  defence  of  new  matter  should  be  pleaded  ;  and  as  new 
matter  must  of  necessity  be  a  distinct  defence  from  a  denial,  it 
follows  that  it  cannot  properly  be  associated  or  mingled  up  with 
denials  general  or  specific  in  one  paragraph  or  plea.  For  the 
same  reason,  each  defence  of  new  matter  must  necessarily  be 
complete  and  single,  as  much  so  as  each  cause  of  action,  and 
should  be  separately  stated  in  a  plea  by  itself.  This  subject  will 
be  treated  of  at  large  in  a  subsequent  section. 

§  691.  The  overwhelming  weight  of  judicial  opinion  has  with 
almost  complete  unanimity  agreed  upon  the  principle  which  dis- 
tinguishes denials  from  new  matter,   and  determines  the  office 

1  Rose  V.  Treadvvay,  4  Nev.  455 ;  Hook  (flefence  in  action  to  recover  land)  ;  Heas- 
V.  Craighead,  32  Mo.  405  ;  White  v.  Allen,  ton  v.  Cincinnati,  &c.  R.  R.,  16  Ind.  275. 
3  Oreg.  103.  But  it  was  held  in  Hunter i\  McLaughlin, 

2  Northrup  v.  Miss.  Valley  Ins.  Co.,  47  43  Ind.  88,  45,  that  the  following  was  a 
Mo.  435,  443,  per  Wagner  J.;  State  v.  sufficient  averment  of  a  want  of  considera- 
Cent.  Pac.  R.  R.,  9  Nev.  79,  87  (pay-  tion  ;  that  the  notes  "  were  given  without 
ment)  ;   Pease   v.  Hannah,   3   Oreg.  301  any  consideration  whatever." 


GENERAL  NATURE  OF  NEW  MATTER.  717 

and  function  of  each.  The  general  denial  pnts  in  issue  all  the 
material  averments  of  the  complaint  or  petition,  and  permits  the 
defendant  to  prove  any  and  all  facts  which  tend  to  negative  those 
averments  or  some  one  or  more  of  them.  Whatever  fact,  if 
j)roved,  would  not  thus  tend  to  contradict  some  allegation  of  the 
plaintiff's  first  pleading,  but  would  tend  to  establisli  some  cir- 
cumstance, transaction,  or  conclusion  of  fact,  not  inconsistent 
with  the  truth  of  all  those  allegations,  is  new  matter.  It  is  said 
to  be  "  new,"  because  it  is  not  embraced  within  the  statements 
of  fact  made  by  the  plaintiff ;  it  exists  outside  of  the  narrative 
which  he  has  given  ;  and  proving  it  to  be  true  does  not  disprove 
a  single  avermeyit  of  fact  in  the  complaint  or  petition,  but  merely 
prevents  or  destroys  the  legal  conclusion  as  to  the  plaintiff's 
rights  and  the  defendant's  duties  which  would  otherwise  have 
resulted  from  all  those  averments  admitted  or  proved  to  be  true. 
Such  is  the  nature  of  the  new  matter  which  cannot  be  presented 
by  means  of  a  denial,  but  must  be  specially  pleaded,  so  that  the 
plaintiff  may  be  informed  of  its  existence  and  of  the  use  to  be 
made  of  it  by  the  defendant.  Whether  it  is  "  new  "  in  the  sense 
described,  must  of  necessity  depend,  and  dej^end  alone,  upon  the 
nature,  extent,  and  variety  of  the  material  allegations  which  the 
plaintiff  inserts  in  his  pleading.  I  shall  not  repeat  the  obser- 
vations upon  this  point  contained  in  the  preceding  section,  and 
simply  remark,  that  the  plaintiff  may,  by  making  unnecessary 
although  material  averments  in  his  complaint  or  petition,  greatly 
enlarge  the  scope  of  the  general  denial,  and  prevent  those  de- 
fensive facts  from  being  in  his  case  new  matter,  which  in  another 
case,  and  from  the  operation  of  a  more  scientific  and  correct  mode 
of  pleading,  would  clearly  be  new  matter.  The  criterion  under 
the  code  sj^stem  is  not,  therefore,  in  every  case,  the  intrinsic, 
essential  nature  of  the  defence  itself  proposed  by  the  defendant : 
it  is  to  be  found  rather  in  the  frame  of  tlie  complaint  or  petition, 
in  the  material  statements  of  fact  made  by  the  plaintiff  therein. 
It  cannot  then  be  said,  for  example,  that  "  payment  "  is  always 
new  matter  ;  for  the  plaintiff  may  so  construct  his  complaint  that 
facts  showing  payment  will  be  directly  contradictory  of  a  material 
averment  embraced  within  it,  and  therefore  plainly  admissible 
under  the  general  denial.  It  is  impossible  for  this  reason  to  col- 
lect, arrange,  and  classify  a  mass  of  different  defences,  and  say  of 
them,  as  could  be  said  under  the  old  system,  that  they  are  all 


718  CIVIL   REMEDIES. 

necessarily  by  way  of  confession  and  avoidance,  and  therefore  all 
of  necessity  "  new  matter." 

§  692.  It  follows  from  the  foregoing  discussion,  that  consider- 
ing the  office  and  function  of  the  general  denial,  and  the  distinc- 
tion between  it  and  new  matter,  the  latter  confesses  and  avoids  all 
the  material  allegatiojis  of  the  complaijit  or  petition ;  that  is,  it 
admits  all  the  material  facts  averred  therein,  and  avoids  their 
legal  result  by  means  of  the  additional  facts  which  are  relied 
upon  as  constituting  the  defence.  A  particular  defence  may 
therefore,  when  set  up  in  answer  to  one  complaint,  be  new  mat- 
ter, and  require  to  be  pleaded :  the  same  kind  of  defence,  when 
set  up  in  answer  to  another  complaint,  may  not  be  new  matter, 
but  may  be  proved  under  the  general  denial  without  being 
specially  pleaded.  Undoubtedly  the  defence  of  payment  in  its 
various  phases  is  the  one  which  most  frequently  assumes  this 
double  aspect;  but  the  principle  plainly  applies  to  other  defences, 
and  is  general.  This  description  of  new  matter  and  the  discus- 
sion of  its  nature  will  be  so  fully  illustrated  by  the  cases  to  be 
cited  in  the  following  subdivision  of  the  present  section,  that 
none  need  now  be  quoted  in  support  of  the  foregoing  positions. 
There  are,  however,  two  special  classes  of  defences,  which, 
though  embraced  under  the  denomination  of  new  matter,  are  so 
peculiar,  and  so  radically  different  from  all  others  of  that  name, 
that  they  require  a  separate  mention,  —  defences  in  mitigation  of 
damages,  and  defences  in  abatement. 

§  693.  Defences  in  Mitigation  of  Damages.  The  theory  of  the 
common  law  in  respect  of  full  and  partial  defences  has  already 
been  stated.^  Each  defence  in  bar  by  way  of  confession  and 
avoidance  must  have  been  a  complete  answer  to  the  whole  cause 
of  action.  Facts  which  fell  short  of  that  result,  but  which  con- 
stituted a  partial  answer,  were  not  regarded  as  true  '•'  defences." 
As  they  did  not  defeat  a  recovery,  but  always  allowed  a  judg- 
ment for  at  least  nominal  damages,  the  severe  logic  of  the  system 
did  not  suffer  them  to  be  pleaded  separately  in  the  form  of  a  bar. 
This  logic  demanded  a  perfect  issue  upon  the  record,  —  an  asser- 
tion on  the  one  side,  and  a  complete  denial  thereof  on  the  other, 
—  or  else  the  record  admitted  the  plaintiff's  right  to  recover.  If 
the  defendant  should  plead  facts  which    constituted    a   partial 

»  See  supra,  §§  607,  608. 


DEFENCES   IN   MITIGATION.  719 

defence  merely,  there  would  be  no  issue,  and  the  common-law 
devotion  to  logical  forms  could  not  admit  such  a  violation  of  its 
theory.  As  the  partial  defences,  if  pleaded,  would  raise  no 
issue,  the  rule  was  adopted  that  they  should  not  be  pleaded,  but 
that  the  general  issue  should  be  interposed,  and  the  facts  consti- 
tuting them  should  be  given  in  evidence  under  that  answer. 
Matters  in  mitigation  are  partial  defences,  and  it  became  the 
settled  doctrine  of  the  former  procedure  that  they  were  to  be 
proved  under  the  general  issue.  Mitigating  circumstances  were 
not  confined  to  actions  for  torts,  to  "  trespass,"  "  case,"  or 
'"•  trover  :  "  they  were  possible  and  proper  as  well  in  actions  upon 
contract,  in  "covenant"  and  "assumpsit."  Part  payment  was 
of  course  such  a  circumstance  ;  and  even  full  payment  might  be 
proved  in  mitigation,  reducing  the  plaintiff's  recover}^  to  nominal 
damages.^ 

§  694.  The  common-law  logic  does  not  control  the  forms  of 
pleading  and  of  the  issues  under  the  present  system.  The  notion 
of  a  partial  defence  on  the  record,  of  an  answer  which  does  not 
go  to  the  whole  cause  of  action,  is  neither  opposed  to  the  spirit 
nor  to  the  letter  of  the  codes ;  on  the  contrary,  it  is  in  full  har- 
mony with  the  spirit,  and  seems  to  be  demanded  by  the  letter. 
The  obvious  intent  of  the  system  —  the  central  conception  —  is 
not  an  observance  of  logical  forms,  but  that  the  facts  which  con- 
stitute the  plaintiff's  cause  of  action,  and  the  defendant's 
resistance  thereto,  shall  be  stated  in  a  plain  and  concise  manner, 
in  ordinary  language,  without  reference  to  any  technical  require- 
ments of  form  or  theory.  The  very  primary  design  of  the  pro- 
cedure is  that  the  truth  as  it  is  between  the  parties  must  be  first 
alleged,  and  then  proved.  The  letter  carries  out  this  spirit, 
because  it  requires  that  the  answer  must  contain  (1)  the  denials, 
and  (2)  a  statement  of  amj  new  matter  constituting  a  defence, 
and  that  the  defendant  may  set  forth  as  many  defences  as  he 
shall  have.  No  other  clauses  of  the  statute  limit  this  general 
language,  or  restrict  it  to  entire  defences.  From  the  nature  of 
the  case,  when  a  complaint  or  petition  is  in  an  ordinary  form,  con- 
taining only  the  averments  necessary  to  state  the  cause  of  action, 
facts  in  mitigation  of  damages  must  be  new  matter  rather  than 

1  For  a  full  statement  of  these  com-     of  Selden  J.  inMcKyring  y.  Bull,  16  N.  Y. 
mon-law    doctrines,  and    their    practical     304,  supra,  §§  658,  659. 
effect  on  the  trial  of  causes,  see  the  opinion  , 


720  CIVIL   REMEDIES. 

denials.  It  follows  that  the  fair  and  obvious  interpretation  of 
the  codes  not  only  permits  but  requires  that  this  class  of 
defences,  wlien  the}'  are  new  matter,  should  be  pleaded.  It  is 
clearly  contrary  to  the  entire  theory  of  the  system  tliat  any  new 
matter,  however  incomplete  may  be  its  effect  upon  the  plaintiff's 
recovery,  should  be  proved  under  a  denial :  there  is  not  the 
slightest  warrant  for  such  a  use  to  be  made  of  the  general  de- 
nial, whatever  may  have  been  the  function  of  the  general  issue 
in  this  resj)ect.  In  interpreting  the  language  of  the  codes,  all 
the  common-law  notions  as  to  the  impossibility  of  pleading  par- 
tial defences  should  be  wholly  rejected  ;  for  they  were  based  upon 
reasons  purely  technical  and  arbitrary,  —  mere  formulas  of  verbal 
logic  without  any  real  meaning.  The  statute  should  be  construed 
in  its  own  spirit  as  an  independent  creation,  and  not  in  the  light 
of  ancient  dogmas  which  it  was  designed  to  supersede.  I  need 
not  collate  and  compare  the  various  provisions  of  the  code  bear- 
ing upon  the  question  in  order  to  establish  the  textual  interpre- 
tation. Nothing  can  be  added  to  the  demonstration  which  Mr. 
Justice  Seldon  has  worked  out  in  the  opinion  already  mentioned 
and  quoted  at  length  in  the  preceding  section,  and  that  opinion 
has  not  been  and  cannot  be  answered. ^ 

§  695.  On  principle,  then,  all  defences  in  mitigation  of  dam- 
ages, when  they  consist  of  new  matter,  should  be  pleaded,  and 
cannot  be  proved,  under  the  general  denial.  How  does  the  ques- 
tion stand  upon  authority  ?  It  is,  of  course,  put  at  rest  in  New 
York  by  the  decision  of  the  tril)unal  of  last  resort  in  McKyring 
V.  Bull.^  The  ratio  decidendi  of  that  case  is  universal  in  its 
application :  it  is  not  confined  to  the  defence  of  payment ;  the 
argument  embraces  all  instances  of  mitigation,  for  it  is  not  based 
upon  the  particular  nature  of  any  defence,  but  upon  an  interpre- 
tation of  the  language  used  by  the  legislature.  This  decision 
has  been  followed  by  other  courts  and  in  other  States,  but  the 
cases  are  not  unanimous :  in  some,  the  ancient  common-law  dog- 
mas have  been  appealed  to  and  accepted  as  controlling.  I  will 
collect  the  more  important  of  these  adjudications.  A  defence  in 
mitigation  having  been  pleaded  to  an  action  for  false  arrest  and 
imprisonment,  the  Supreme  Court  of  New  York,  in  denying  a 
motion  to  stiike  out  the  answer,  said :  "  It  has  been  held  in  sev- 
eral cases  that  mitigating  circumstances  in  actions  of  this  nature 
1  McKyring  i-.  Bull,  16  oS'.  Y.  304.    See  supra,  §§  658,  059. 


DEFENCES    IN    MITIGATION, 


721 


may  be  proved  without  being  set  up,  if  admissible  in  evidence  at 
all.  Whatever  weight  may  be  given  to  these  authorities,  I  am 
inclined  to  think  that  the  case  of  Foland  v.  Johnson,^  which  was 
decided  by  the  general  term  of  this  district,  settles  the  question 
in  favor  of  the  doctrine  that  mitigating  circumstances  maybe  set 
up  by  way  of  answer  in  a  case  like  the  present  one."  ^  In  Foland 
V.  Johnson,^  which  was  an  action  for  assault  and  battery  and 
false  imprisonment,  it  was  held  that  a  separate  defence  in  miti- 
gation was  proper.  McKyring  v.  Bull  was  distinctly  recog- 
nized as  overruling  previous  cases,  and  as  laying  down  the 
universal  rule  of  interpretation  for  all  causes  of  action  and 
defences.  It  had  been  said  in  several  early  New  York  cases  that 
matter  in  mitigation  cannot  be  pleaded,  but  must  be  proved  under 
a  general  denial :  these  decisions  were  all  pronounced  before  that 
made  in  McKyring  v.  Bull,  and  must  therefore  be  considered  as 
overruled.^     There  is  a  dictum  in  Travis  v.  Barger,^  to  the  effect 


1  Foland  v.  Johnson,  16  Abb.  Pr.  235, 
239. 

2  Beckett  v.  Lawrence,  7  Abb.  Pr.  n.  s. 
403,405. 

3  Saltus  V.  Kip,  5  Duer,  646  (Sp. 
Term) ;  Kneedler  v.  Sternbergh,  10  How. 
Pr.  67  (Sp.  Term)  ;  Dunlap  v.  Snyder,  17 
Barb.  561  ;  Anonymous,  8  How.  Pr.  434 
(Sp.  Term)  ;  Gilbert  v.  Rounds,  14  How. 
Pr.  46  ;  Lane  v.  Gilbert,  9  How.  Pr.  150. 

4  Travis  v.  Barger,  24  Barb.  014,  623, 
per  Birdseye  J.  There  are  New  York 
cases,  however,  subsequent  to  McKyring 
V.  Bull,  which  utterly  disregard  it,  and 
might  be  considered  as  overruling  it,  were 
it  possible  for  a  lower  court,  and  a  single 
judge  quoting  liimself  as  authority,  to 
overrule  the  decisions  of  a  higher  tribunal. 
In  Harter  v.  Grill,  83  Barb.  283,  per  Mor- 
gan J.,  which  was  an  action  for  criminal 
conversation,  it  was  held  that  facts  in 
mitigation  could  be  proved  under  the  gen- 
eral denial.  McKyring  v.  Bull  was  men- 
tioned, and  its  authority  was  denied 
because  the  mitigating  circumstances  did 
not  constitute  a  defence.  It  was  said 
that  the  section  requiring  new  matter  to 
be  pleaded  (§  149  of  the  New  York  code) 
includes  only  those  cases  in  which  the 
facts  to  be  alleged  amount  to  a  complete 
defience.  In  short,  the  entire  argument, 
the  whole  course  of  reasoning  approved  by 


the  court  of  last  resort,  was  disregarded. 
No  analysis  or  comparison  of  other  sec- 
tions and  passages  bearing  upon  the  ques- 
tion was  made  :  the  results  reached  by 
the  Court  of  Appeals,  after  a  most  careful 
e.xamination  of  the  text  of  the  statute 
aided  by  the  light  of  experience,  were 
overturned  by  a  bare  assertion.  Finally, 
in  Tompkins  v.  Wadley,  3  N.  Y.  S.  C.  424, 
430,  per  Morgan  J.,  which  was  an  action 
for  the  breach  of  a  promise  to  marry,  evi- 
dence in  mitigation  was  held  admissible 
under  the  general  denial.  The  same 
judge  agaih  delivered  the  opinion,  and 
cited  Harter  v.  Grill,  Travis  v.  Barger,  24 
Barb.  614,  623,  and  KnilTen  v.  McGonnell, 
30  N.  Y.  290,  in  support  of  his  position, 
McKyring  v.  Bull  not  being  mentioned. 
The  two  former  cases  have  already  been 
commented  upon.  In  the  head-note  of 
Kniffen  v.  McGonnell,  the  reporter  states 
that  "  it  seems  matter  in  mitigation  may 
be  proved  under  the  general  denial ;  "  but 
there  is  nothing  in  the  opinion  of  the  court 
which  furnishes  the  slightest  warrant  for 
even  that  guarded  statement.  The  doc- 
trine of  the  text  is .  therefore  fully  sus- 
tained by  judicial  authority  in  New  York. 
The  two  opinions  of  Mr.  Justice  Morgan 
can  hardly  be  regarded  as  overturning  the 
judgment  pronounced  by  the  tribunal  of 
final   resort ;    and   the  argument   of  Mr. 


46 


722  CIVIL  REMEDIES. 

that  circumstances  in  mitigation  may  be  proved  under  the  gen- 
eral denial ;  but  the  facts  did  not  call  for  any  decision.  The 
proposition  was  stated  by  the  judge  arguendo,  and  the  opinion 
itself  was  prior  to  the  announcement  of  the  contrary  doctrine  by 
the  Court  of  Appeals. 

§  696.  In  Indiana  the  common-law  dogma  is  still  adhered  to. 
The  rule  as  stated  by  the  Sujn-eme  Court  of  that  State  is,  that 
"  matter  in  mitigation  only  cannot  be  specially  pleaded  or  set  up 
by  way  of  answer,  but  may  be  given  in  evidence  under  the  gen- 
eral denial.  We  know  of  no  authority,  either  at  common  law  or 
by  statute,  allowing  matters  in  mitigation  only,  except  in  actions 
for  libel  and  slander,  to  be  specially  pleaded  or  set  up  in  the 
answer."  ^  In  Kentucky  it  would  seem  that  a  partial  defence  in 
mitigation  should  be  pleaded.^  The  codes  expressly  authorize 
mitigating  circumstances  to  be  pleaded  in  actions  for  libel  or 
slander. 

§  697.  Defences  in  Abatement.  At  the  comrnon  law,  all  pleas 
were  divided  into  two  general  classes,  —  those  "  in  bar  "  and  those 
"  in  abatement."  "  Whenever  the  subject-matter  of  the  defence 
is,  that  the  plaintiff  cannot  maintain  any  action  at  any  time, 
whether  present  or  future,  in  respect  of  the  supposed  cause  of 
action,  it  may  and  usually  must  be  pleaded  in  bar ;  but  matter 
which  merely  defeats  the  present  proceeding,  and  does  not  show 
that  the  plaintiff  is  for  ever  concluded,  should  in  general  be 
pleaded  in  abatement.''''  ^  The  most  common  defences  in  the 
present  system  analogous  to  the  ancient  pleas  in  abatement  are 
those  which  set  up  want  of  jurisdiction  in  the  court,  or  a  present 
want  of  legal  capacity  in  the  plaintiff  to  sue,  or  a  defect  of  par- 
ties, or  the  pendency  of  another  action.  There  was  a  marked 
difference  between  these  two  classes  of  pleas  at  the  common  law, 
and  certain  special  rules  regulating  the  use  of  those  in  abatement. 
Among  these  rules,  the  following  were  important.  A  plea  in  abate- 
ment could  not  be  joined  with  one  in  bar  in  answer  to  the  same 
subject-matter  ;  but  the  former  must  be  pleaded  by  waj'  of  intro- 

Justice    Selden   is   certainly  unanswered  per  Robertson  J.     Mitigating  facts   and 

and    unanswerable    on    principle.      See,  circumstances  must  be  pleaded  in  actions 

however,  O'lJrien  v.   iMcCaun,  58  N.  Y.  for  libel  or  slander,  and  cannot  be  proved 

373,  376.  under  a  general  denial,  Langton  v.  Hag- 

1  Smith  !;.  Lisher,  23  Ind.  500,  502,  per  erty,  35  Wise.  150,  161,  162;  "Wilson  v. 
Elliott  J.  ;  and  see  Allis  v.  Nanson,  41  Noonan,  35  Wise.  321,  348,  349.  See 
Ind.  154,  157,  158,  per  Worden  J.  Desmond  v.  Brown,  33  Iowa,  13. 

2  Hackett  v.  Scliad,  3  Bush,  353,  355,  ->  1  Ch.  PI.  446. 


EXAMPLES   OP   NEW   MATTER.  723 

ductioii,  and  must  be  disposed  of  before  a  plea  in  bar  could  be 
interposed.  As  a  consequence,  the  pleading  a  defence  in  bar 
waived  all  defences  in  abatement  to  the  same  matter.  The 
judgments  rendered  upon  the  two  classes  of  pleas  were  different : 
for  the  one  simply  dismissed  that  suit,  and  did  not  prevent  the 
plaintiff  from  commencing  another ;  while  the  other  ended  the 
judicial  controversy  in  respect  to  the  subject-matter  involved. 

§  698.  There  are  in  the  new  procedure  no  such  divisions  and 
classes.  Defences  still  exist  of  the  same  essential  nature  as  those 
which  were  formerly  set  up  by  means  of  a  plea  in  abatement, 
and  a  judgment  thereon  in  favor  of  the  defendant  does  not  for 
ever  bar  the  plaintiff  from  the  further  prosecution  of  his  demand. 
They  are  governed,  however,  by  the  same  rules  of  procedure 
that  regulate  all  the  other  defences  which  may  be  relied  upon  by 
a  defendant.  There  is  no  difference  in  the  methods  of  pleading 
them,  of  trying  them,  or  of  adjudicating  upon  them :  the  only 
difference  is  in  respect  to  the  conclusive  effects  of  the  judgments 
rendered  upon  them.  In  other  words,  so  far  as  concerns  the 
manner  of  alleging  and  of  trial,  all  distinctions  between  these 
two  classes  of  defences  have  been  abolished,  and  both  have  been 
placed  in  the  same  category.^  All  defences  which  are  analogous 
to  the  ancient  pleas  in  abatement  —  that  is,  all  which  are  based 
upon  the  same  facts  —  are  evidently  new  matter  ;  they  cannot  be 
proved  under  the  general  denial,  but  must  be  speciall}^  pleaded. 

III.  Some  Particular  Defences  of  New  Matter  classified  and 

arranged. 

§  699.  In  all  the  following  examples  in  which  it  has  been 
held  that  the  defences  are  new  matter,  it  must  be  under- 
stood that  the  complaints  or  petitions  were  in  the  proper  form, 
containing  the  allegations  necessary  to  constitute  the  causes  of 
action,  and  no  more.  When  the  plaintiff's  pleadings  deviated 
from  this  usual  type,  and  were  so  framed  that  the  defences  could 
be  admitted  under  the  general  denial,  this  fact  will  be  particularly 
mentioned. 

1  Stone's  Administrator  v.  Powell,  13  ties)  ;    Bridge   v.    Payson,   5   Sandf.    210 

B.  Mou.  3-12;  Sweet  v.  Tuttle,  14  N.  Y.  (defect  of  parties) ;  Freeman  y.  Carpenter, 

465,  468,  per  Comstock  J.  (defect  of  par-  17  Wise.  126  (pendency  of  another  action) ; 

ties)  ;    Gardner   v.   Clark,   21  N.   Y.  399  Thompson  v.   Greenwood,  28  Ind.  327  ; 

(pending  of  another  action)  ;  Mahew    v.  Bond  v.  Wagner,  28  Ind.  462. 
Robinson,  10  How.  Pr.  162  (defect  of  par- 


724  CIVIL   REMEDIES. 

§  700.  Payment.  It  is  the  settled  rule,  except  perhaps  in  Cali- 
fornia, that  Avhen  the  complaint  or  petition  is  in  the  customary 
form,  not  averring  the  fact  of  non-payment  in  so  distinct  a  man- 
ner that  an  issue  would  be  raised  upon  it  by  a  denial,  the  defence 
of  pa3'ment  is  new  matter,  and  must  be  pleaded  as  such.^  When, 
however,  the  complaint  or  petition  contains  negative  averments 
of  non-payment,  so  that  a  traverse  of  them  is  in  fact  equivalent 
to  an  allegation  of  payment,  an  issue  is  made  b}'  the  mere  denial 
general  or  specific,  which  admits  the  defence  of  payment  to  be 
proved  under  it.  This  is  not  an  exception  to  the  foregoing  rule  ; 
for  an  issue  upon  the  very  fact  of  payment  is  actually  formed  by 
such  assertions  and  denials.  The  decided  cases  present  some 
differences  in  respect  to  the  form  of  the  averment  in  the  com- 
plaint or  petition,  which,  by  being  traversed,  permits  the  defence 
to  be  interposed ;  but  the  principle  upon  which  they  were 
decided  is  the  same  in  all.  In  an  action  to  recover  for  work  and 
labor,  the  complaint  stated  the  agreement,  the  performance  of 
services  at  a  stipulated  price,  and  that  on  a  certain  day  named 
the  defendant  "  was  indebted  to  the  plaintiff  in  the  sum  of 
$333,  being  the  balance  remaining  due  after  sundry  payments 
made  by  defendant  to  the  plaintiff."  The  answer  was  a  general 
denial.  Evidence  offered  by  the  defendant  to  prove  payments 
made  by  him  on  account,  the  New  York  Court  of  Appeals  held, 
ought  to  have  been  admitted  under  this  issue,  distinguishing  the 
case  from  McKyring  v.  Bull  by  reason  of  the  peculiar  averments 
in  the  complaint.^  Where  a  complaint  set  out  an  indebtedness 
by  the  defendant,  and  added  "  that  the  same  was  still  due 
and  unpaid,"  the  general  denial  was  held  a  sufficient  answer  to 

'  McKyring   v.   Bull,    16   N.  Y.  297  ;  under   the   issue   was   error.      This  case 

Morrell  v.  Irving  Fire  Ins.  Co.,  33  N.  Y.  certainly  goes    further  than   any    other, 

429,  443,  per  Davies  J. ;  Texier  v.  Gouin,  5  and  is  inconsistent  with  those  cited  in  the 

Duer,  389,  391,  per  Oakley  C.  J.  ;  Martin  ne.xt  following  "note.     Hall  v.   Olney,  65 

V.  Pugh,  23  Wise.  184 ;  Phillips  v.  Jarvis,  Barb.  27,  an  instance  of  payment  after 

19  Wise.  204;  Stevens  v.   Tiiompson,   5  suit  brought.    Held,  that  defendant  should 

Kans.  305,  distinguishing  Marley  v.  Smith,  have  set  up  the  defence  in  a  supplemental 

4  Kans.  183,  on  the  ground  that  in   the  answer. 

latter  case  the  allegations  were  unusual ;  '^  Quin   v.  Lloyd,  41   N.  Y.  349,  352, 

Baker  r.  Kistler,  13  Ind.  63;  Hubler  v.  per  Lott. I. :"  The  denial  involved  an  issue 

Pullen,  9  Ind.  273  ;  Bassett  v.  Lederer,  1  upon  all  the  facts  above  stated  and  denied, 

Hunn,  274,  an  action  for  goods  sold  and  not  only  of  the  agreement  and  of  the  time 

delivered.     The  complaint  stated  tliat  de-  which  the  plaintiff  worked,  but  necessarily 

fendant  "  had  not  paid  the  price,  nor  any  of  the  different  payments  made,  so  as  to 

part  tliereof:"  the  answer  was  a  general  determine  what  in  fact  was  the  balance  of 

denial.     Held,    that    proof    of    payment  the  defendant's  debt.     That  balance  could 


EXAMPLES    OP    NEW    MATTER.  725 

allow  proof  of  payment. ^  In  an  action  for  work  and  labor,  the 
complaint  alleged  the  services  to  a  specified  amount  in  value, 
and  that  there  was  a  balance  due  the  plaintiff,  "  after  deducting 
all  payments  made  by  defendant  to  plaintiff  thereon,  of  $175." 
The  general  denial,  it  was  held,  entitled  the  defendant  to  prove  all 
the  payments  which  he  had  made.^  This  special  rule  has  been 
repeatedly  acted  upon  by  the  courts  of  California.  Indeed,  as 
has  been  before  stated,  they  have  gone  much  farther,  and  have 
made  it  a  general  requisite,  in  actions  upon  promissory  notes 
at  least,  that  the  complaint  must  aver  the  non-payment  as  a 
breach  in  a  distinct  form,  or  it  will  fail  to  state  a  cause  of  action ; 
and  that  the  general  denial  of  such  a  pleading  necessarily 
admits  evidence  of  payment.  In  some  of  the  cases  the  judges 
have  gone  to  the  length  of  declaring  that  the  general  denial, 
like  the  general  issue  of  nil  debet  or  non  assumpsit^  always 
admits  the  defence  of  payment.^ 

§  701.  When  a  defence  of  payment  is  pleaded,  it  is  competent 
to  show  that  the  payment  was  actually  made  in  cash,  or  in  some 
other  manner  agreed  upon  by  the  parties :  as  that  it  was  made  by 
the  delivery  of  chattels,  which  were  received  by  the  creditor  in 
satisfaction  of  his  demand  ;  *  or  by  the  giving  and  acceptance  of 
any  thing  that  is  received  in  the  place  of  money,  and  in  discharge 
of  the  debt.^  But  under  the  answer  of  payment  in  an  action  upon 
a  note,  the  defendant  cannot  prove  a  want  of  consideration  for 
the  note,  or  a  mistake  in, its  execution,  or  an  error  in  the  prior 
accounting  and  the  ascertaining  the  balance  for  which  it  was 
given,  or  the  execution  of  a  contemporaneous  writing  which 
modifies  or  controls  the  legal  effect  of  the  note  ;  and  the  same 
doctrine  is  plainly  applicable  to  actions  upon  any  species  of  writ- 
ten agreement.^ 

not  be  ascertainefl  witliout  an  inquiry  as  '  Marley  v.  Smith,  4  Kans.  183,  186. 

to  tlie  amount  of  the  payments,  as  well  Explained   in    Stevens    v.    Thompson,    5 

as   the   value   of  the    work   performed."  Kans.  305. 

Also  per  Woodruff  J.  (p.  354)  :  "  It  was  2  White  v.  Smith,  46  N.  Y.  418. 

wholly  unnecessary  for  the  plaintiff  to  sue  ^  Frisch  v.    Caler,   21  Cal.   71;    Fair- 

for  a  balance  as  such.     He  might  allege  child  o.  Amsbaugh,  '2:2,  Cal.  572  ;  Wetmore 

the   contract,   performance   on   his   part,  v.  San   Francisco,  44   Cal.  294,  299,  per 

and   claim   payment ;    and   then,   if    the  Crockett  J.  ;  Davanay   v.  Eggenhoff,  43 

defendant  desired  to  prove  payment,  he  Cal.  395,  397,  per  Rhodes  J. 

must  aUege  payment  in  his  answer.     But  *  Farmers'  Bank  v.  Sherman,  33  N.  Y. 

where  the  plaintiff  sues  for  a  balance,  he  69. 

voluntarily  invites  examination  into  the  ^  Hart  v.  Crawford,  41  Ind.  197. 

amount  of  the  indebtedness,  and  the  ex-  ®  Lowry  v.  Shane,  34  Ind.  495. 

tent  of  the  reduction  thereof  by  payment." 


726  CIVIL   REMEDIES. 

§  702.  The  defence  of  an  arbitrament  and  award  covering  the 
same  matters  in  controversy  as  tliose  stated  in  the  complaint  is 
new  matter,  and  must  be  pleaded  ;  ^  and  so  also  is  the  defence  of 
a  former  recovery  for  the  same  cause  of  action,^  and  of  a  former 
partial  recovery.^ 

§  703.  Actions  to  recover  Possession  of  Chattels.  In  an  action 
to  recover  possession  of  chattels,  the  complaint  alleging  property 
in  the  plaintiff,  and  the  answer  specifically  denying  the  wrongful 
taking  and  detention  of  the  goods,  and  no  more,  the  facts  relied 
upon  by  the  defendant  as  constituting  his  actual  defence  were, 
that  the  plaintiff  and  one  G.  were  partners  and  the  real  owners 
of  the  ooods  in  question,  and  that  G.  had  bailed  them  to  the  de- 
fendant, who  retained  them  in  virtue  of  such  bailment.  This 
defence,  however,  was  held  inadmissible  under  the  pleadings, 
because,  first,  the  unquahfied  ownership  of  the  plaintiff  was  ad- 
mitted on  the  record  by  the  failure  of  the  answer  to  deny  the 
alleo-ation  of  property  contained  in  the  complaint ;  and,  secondly, 
the  authority  conferred  by  one  owner,  G.,  upon  the  defendant,  to 
take  and  retain  possession  of  the  chattels,  was  new  matter,  and 
should  have  been  pleaded.*  And,  in  a  similar  action,  a  defence 
that  the  defendant  had  loaned  money  to  the  plaintiff's  intestate, 
who  was  the  late  owner  of  the  chattels,  and  had  received  from 
him  the  possession  thereof,  and  retained  them  in  possession  as 
security  for  such  advances,  is  new  matter,  and  cannot  be  proved 
unless  specially  pleaded;^  and  the  same  is  true  of  the  defence, 
that  the  plaintiff's  title  is  fraudulent  and  void  as  against  his  cred- 
itors.^ 

S  704.  Actions  for  Torts.  In  an  action  to  recover  damages  for 
the  conversion  of  chattels,  a  justification  by  the  defendant  as 
sheriff,  under  an  attachment,  judgment,  execution,  and  levy 
against  a  third  person,  charging  that  the  goods  were  the  property 

1  Brazill  v.  Isliam,  12  N.  Y.  9,  17,  per  qategory  ;  for  tlie  defences  admit  the  con- 
Gardiner  J. :  "  The  defendants  cannot  tract  as  stated,  and  avoid  its  effect  by 
avail  tliemselves  of  the  award  in  this  case  matter  ex  post  facto." 
as  a  defence,  as  tliey  have  not  insisted  -  Hendricks  v.  Decker,  35  Barb.  298  ; 
upon  it  in  tlieir  answer.  The  plaintiff  had  Plercy  v.  Sabin,  10  Cal.  22;  Norris  v. 
stated  in  his  complaint  a  prima  facie  cause  Amos,  15  Ind.  365. 

of  action  arising  on  tiie  original  retainer  3  Morrell  v.  Irving  Fire   Ins.  Co.,  33 

of  the  defendants.     To  meet  the  case  thus  N.  Y.  429,  443. 

made  by  new  matter  constituting  a  de-  ■•  Tell  v.  Beyer,  38  N.  Y.  161. 

fence,  it  must  be  set  forth  plainly  in  the  5  Gray  v.  Fretwell,  9  Wise.  186. 

answer.     An  award  or  former  recovery  c  Frisbee    v.    Langworthy,   11   Wise, 

for  the  same  cause  would  fall  withiu  this  375. 


EXAMPLES   OP   NEW   MATTER.  727 

of  such  judgment  debtor,  and  had  been  fraudulently  assigned  and 
transferred  by  him  to  the  plaintiff,  so  that  the  latter's  title  was 
void,  cannot  be  proved  under  an  answer  of  denials,  but  must  be 
pleaded  as  new  matter.^  There  are  cases  which  go  to  the  extent 
of  holding,  that,  under  the  general  denial,  —  which  traverses  the 
indispensable  averment  of  a  sufficient  property  in  the  plaintiff,  — 
the  defendant  cannot  show  property  in  himself:  '^  but  this  ruling 
seems  opposed  to  the  weight  of  authority ;  and  it  is  certainly 
contrary  to  the  plainest  principles  of  pleading,  for  such  facts, 
when  proved,  merely  contradict  the  j^laintiff's  averment  of  his 
own  title.^ 

§  705.  In  the  action  for  breaking  and  entering  the  plaintiff's 
premises  (trespass  qu.  cl.fr.},  with  the  complaint  in  the  proper 
form,  and  without  any  unnecessary  averments,  the  general 
denial  does  not  raise  any  issue  as  to  the  title  to  the  land,  and  no 
evidence  attacking  such  title  can  be  received  except  under  a 
separate  defence  ;  *  nor  can  any  defence  of  justification  be  proved 
unless  specially  pleaded.^  Where  two  or  more  unite  as  plaintiffs 
in  an  action  for  the  taking  and  carrying  away  their  goods,  a  de- 
fence that  "  the  plaintiffs  are  not  joint  owners  of  the  goods  and 
chattels  mentioned  in  the  complaint  "  is  new  matter.^  To  a 
complaint  for  an  assault  and  battery  committed  by  a  railroad  con- 
ductor in  forcibly  ejecting  the  plaintiff  from  the  cars,  the  general 
denial  was  pleaded:  under  this  issue,  the  defendant  was  not  per- 
mitted to  show  the  regulations  of  the  company,  that  they  were 
reasonable,  and  that  he  was  complying  with  them  in  doing  the 
act  complained  of.'^  The  defence  of  recaption,  or  its  equivalent, 
in  an  action  against  a  sheriff  for  an  escape,  is  new  matter.     An 

1  Jacobs  V.  Remseri,  12  Abb.  Pr.  390;  2  Dyson  v  Ream,  9  Iowa,  51. 

Graham  v.  Harrower,  18  How.  Pr.   144.  ^  ggg  supra,  §§  677,  678. 

In  the  latter  case,  T.  R.  Strong  J.  seems  *  Squires  v.  Seward,  16  How.  Pr.  478  ; 

to  concede,  that,  under  a  denial  of  the  al-  Rathbone  v.   McConnell,  20  Barb.  311  ; 

legation  of  property  in  the  phiintiff,  the  Althouse  v.  Rice,  4  E.  D.  Smith,  347. 
defendant  may  prove  general  property  in  ^  Johnson  v.  Cuddington,  35  Ind.  43. 

himself,  but  not  a  justification  under  judi-  •>  Walrod  v.  Bennett,  6  Barb.  144. 

cial  process.     Frisbee  v.  Langworthy,  11  ^  Pier  v.  Finch,  29  Barb.  170.     In   an 

Wise.  375,  an  action  to  recover  posses-  action  for  false  arrest  and  imprisonment, 

sion,  but  governed  by  the  same  ride  as  proof  of  the  plaintiff's  bad  character  in 

to  pleailing  a  justification.     Isley  v.  Hu-  respect  to  the  offence  for  which  he  was 

ber,  45  Ind.  421  ;  Boaz  v.  Tate,  43  Ind.  60,  arrested  cannot  be  proved  under  the  gen- 

71,72;  Joimson  v.   Cuddington,  35   Ind.  eral  denial,  Scheer  v.  Keown,   34   Wise. 

43  ;   Langton  v.  Hagerty,  35  Wise.  150,  349. 
161. 


728  CIVIL    REMEDIES. 

answer  setting  up  this  defence  liaving  been  pleaded,  the  defend- 
ant, at  the  trial,  offered  to  prove,  not  the  return  or  the  retaking 
of  the  prisoner,  but  that  he  would  have  voluntarily  returned, 
and  was  intending  to  do  so,  had  he  not  been  prevented  from  ac- 
complishing his  purpose  by  the  fraud  of  the  plaintiff.  This 
defence  was  held  inadmissible  under  a  general  denial,  or  under 
the  special  answer  of  recaption,  because  it  was  new  matter,  and 
the  allegations  and  proofs  must  agree. ^  The  defence  of  recoup- 
ment of  damages  is  in  all  cases  new  matter,  and  must  therefore 
be  pleaded,  although  it  is  often  a  partial  defence  analogous  to 
those  in  mitigation.^ 

§  706.  Actions  concerning  Lands.  In  the  legal  action  to  recover 
possession  of  land,  the  complaint  or  petition  being  in  the  common 
form,  alleging  in  general  terms  that  the  plaintiff  is  seized  in  fee 
of  the  premises,  and  the  wrongful  taking  and  withholding  posses- 
sion thereof  by  the  defendant,  and  the  answer  consisting  merely 
of  denials  general  or  specific,  the  defendant  cannot,  it  has  been 
held,  prove  a  prior  equitable  title  in  himself  derived  from  the  plain- 
tiff or  his  grantor,  altliough  a  legal  title  in  himself  may  be  proved, 
as  this  would  directly  contradict  the  averment  in  the  complaint 
that  the  plaintiff  was  owner  of  the  premises.^  An  action  was 
brought  by  a  wife  against  her  husband  to  establish  her  title  to 
certain  lands.  The  complaint  alleged  facts  showing  that  she  was 
the  equitable  owner  of  the  lands,  which  had  been  purchased  by 
the  husband  with  her  money  under  an  understanding  that  the 
conveyance  was  to  be  made  directly  to  her,  but  which  he  had,  in 

1  Richtmeyer  v.  Remsen,  38  N.  Y.  206,  tioii.     Proof  of  such  facts  do  not  contro- 

208,  per  Grover  J.  :    "  The  question  is,  vert  any  allegations  of  the  complaint.     It 

whetlier  these  grounds' of  defence  must  is,  therefore,   new  matter,  constituting  a 

be  set  up  in  the  answer;  tliat  is,  whether  defence  to  the  action,  and,  under  the  code, 

the  defence  offered  consists  of  new  mat-  is  inaihnissible  unless  set  up  in  the  an- 

ter,  or  whether  it  merely  disproves  any  swer." 

of  the  material  allegations  of  the   com-  ^  Crane  v.  Hardinun,  4  E.  D.   Smith, 

plaint.     All  that  the  plaintiff  must  allege  448. 

and  prove  to  maintain  his  action  is  the  ■*  Stewart  r.  Hoag,  12  Ohio  St.  623 ; 

recovery  of  the  judgment,  the  issue  and  Lombard  v.  Cowham,  34  Wise.  486,  491 ; 

delivery  of  e.\ecution   to  the  sheriff,  the  Hartley  u.  Brown,  46  Cal.  201.     Seesiipi-a> 

capture  of  the  debtor  on  the  execution,  §  670,  as  to  what  defences  may  be  proved 

and  tlie  escape  from  custody  before  suit  under  the  general  denial  in  this  action.    A 

brought  against  the  sheriff  therefor.     We  title  accruuig  to  the  defendant  since  the 

have   seen   that   the  sheriff  may  defend  commencement   of    the   action   must   be 

the  action  by  proving  a  recaption  of  the  pleaded  by  a  supplemental  answer.    Roper 

debtor  before  suit  brought,  or  tacts  legally  w.  McFadden,  48  Cal.  346,  348;  McLane 

excusing  him  from  making  such  recap-  v.  Bovee,  35  Wise.  27,  34. 


EXAMPLES    OP    NEW    MATTER.  729 

fraud  of  her  rights,  procured  to  be  made  to  himself:  it  prayed 
that  she  might  be  declared  the  owner,  and  that  a  deed  to  her 
from  her  husband  might  be  ordered.  W.,  a  judgment  creditor  of 
the  husband,  was  permitted  to  intervene,  and  was  made  a  party 
defendant.  He  simply  pleaded  a  general  denial.  This  answer, 
it  was  held,  put  in  issue  only  the  averments  of  the  complaint,  and 
did  not  permit  the  defendant  W.  to  set  up  and  prove  his  charac- 
ter or  rights  as  a  judgment  creditor  of  the  husband.  In  short,  he 
could  obtain  no  advantage  from  his  intervention,  because  no  allu- 
sion was  made  in  the  complaint  to  his  position  and  claims  as  a 
creditor:  that  subject-matter  was  entirely  outside  of  its  aver- 
ments.^ A  widow  sued  to  recover  her  dower  in  lands  which  the 
husband  had  conveyed  to  the  defendant  during  the  marriage 
without  any  release  from  herself,  and  stated  in  her  complaint  the 
facts  necessary  to  make  out  the  cause  of  action.  The  answer  set 
up  as  a  defence  that  the  husband  left  a  last  will,  in  which  he  de- 
vised and  bequeathed  to  the  plaintiff  certain  property  to  be  re- 
ceived by  her  in  lieu  of  dower ;  that  she  had  elected  to  take  the 
gift  under  the  will,  and  had  thus  barred  her  right  of  dower.  This 
defence  was  held  to  be  new  matter,  and  to  have  been  admitted  by 
the  plaintiff's  neglect  to  reply  and  controvert  its  statements.^  In 
an  action  brought  by  the  owners  of  lots  abutting  upon  a  certain 
alley  in  a  city  to  restrain  the  corporation  from  improving  such 
alley,  on  the  ground  that.it  was  a  private  passage  belonging  to 
the  plaintiffs,  the  complaint  contained  the  averments  of  property 
in  the  plaintiffs  necessary  to  show  a  right  of  action.  The  an- 
swer stated  facts  showing  that  the  original  owner  of  the  land  — 
the  grantor  or  source  of  title  of  the  plaintiffs — had  dedicated 
this  alley  to  public  use,  and  that  it  had  thus  been  made  a  high- 
wa3^  These  facts,  it  was  held,  could  not  be  proved  under  a 
general  denial:  they  were  new  matter,  and  must  be  specially 
pleaded.^     The  defence  of  long-continued  adverse  user  or  pre- 

1  Watkins  v.  Jones,  28  Ind.  12.  3  City  of  Evansville  v.  Evans,  37  Ind. 

2  McCart}'  v.  Roberts,  8  Ind.  150.  A  229,  23G.  This  decision  seems  to  be  op- 
reply  to  all  new  matter  was  necessary,  posed  to  the  well-settled  doctrines  con- 
In  a  creditor's  snit  to  reach  a  d»bt  due  cerning  the  office  and  effect  of  the  general 
to  the  judgment  debtor  as  the  vendor  of  denial.  The  complaint  alleged  a  property 
land  from  the  vendee  thereof,  both  being  in  the  plaintiffs,  which  was  the  very  gist 
defendants,  the  latter's  answer,  that  the  of  their  action  ;  and  a  general  denial 
purcliase-price  had  been  fully  paid  to  the  would  permit  the  defendant  to  contradict 
vendor,  was  held  to  be  new  matter,  and  to  such  allegation.  Proving  a  dedication 
require  a  reply,  in  Oliio,  Edwards  v.  Ed-  to  the  public  is  nothing  more  nor  less  than 
wards,  24  Ohio  St.  402,  411.  showing  title  in  the  defendant,  the  city  ; 


730  CIVIL   REMEDIES. 

scription  in  actions  affecting  the  title  or  possession  of  lands,  or 
involving  the  existence  of  easements,  is,  in  general,  new  matter ; 
for,  in  the  usual  form  of  such  actions,  the  defence  will  be  in  the 
nature  of  a  justification  of  the  acts  complained  of.  Thus,  for  ex- 
ample, in  an  action  brought  to  remove  a  dam  maintained  by  the 
defendant,  and  to  restrain  his  diversion  of  water  from  the  stream, 
and  for  damages,  the  defence  of  a  long  adverse  user  or  prescrip- 
tion, by  which  his  right  to  the  dam  and  to  the  water  had  become 
perfect,  is  new  matter,  and  should  be  pleaded.^ 
.  §  707.  Actions  upon  Contract.  The  defence  of  usury  is  clearly 
new  matter  ;  ^  and  the  facts  showing  the  usurious  agreement  and 
the  entire  transaction  must  be  stated  with  fulness  and  circum- 
stantiality.^ The  general  denial  in  an  action  to  recover  damages 
for  the  breach  of  a  promise  to  marry  does  not  admit  the  defence 
of  the  improper  habits  and  bad  character  of  the  plaintiff;  as, 
that  she  habitually  used  intoxicating  liquors  to  excess,  and  was 
in  the  habit  of  becoming  intoxicated.  Such  facts,  if  they  amount 
to  a  defence  in  bar,  are  new  matter,  and  must  be  alleged  in  the 
answer."*  The  owner  of  a  building  incumljered  by  a  mortgage 
procured  it  to  be  insured  against  fire,  the  policy  being  made  pay- 
able to  the  mortgagee.  In  an  action  on  this  policy  brought  by 
the  payee  therein,  the  defence  that  the  mortgage  had  been  fore- 
closed, the  land  sold,  and  the  mortgage  debt  partly  discharged 
out  of  the  proceeds,  was  held  inadmissible  under  an  answer  of 
mere  denials.  These  facts  constituted  a  partial  defence  in  the 
nature  of  payment,  and  were  clearly  new  matter.^  In  a  suit 
against  a  surety,  the  defence  of  his  discharge  from  liability  by 
reason  of  an  extension  of  the  time  of  paj'ment  granted  to  the 
principal  debtor,  in  pursuance  of  a  private  agreement  made  with 
the  creditor,  is  new  matter,  and  cannot  be  proved  unless  pleaded 
as  such ;  ^  and  also  his  discharge  by  reason  of  any  other  subse- 
quent agreement  between  the  principals  to  the  contract." 

and  this  directly  controverts  tlie  material  by  the  plaintiff  can  be  proved  in  mitiga- 

statements  of  tlie  complaint.  tion  under  the  general  denial. 

1  Mathews  v.  Ferrea,  45  Cal.  51.  ^  Grosvenor  v.  Atlantic  Fire  Ins.  Co., 

•■2  Catlin  V.  Gmiter,  1  Duer,  253,  265;  1  Bosw.  469. 
Fay  V.  Grimsteed,  10  Barb.  321.  «  Newell  v.  Salmons,  22  Barb.  647. 

3  Manning  v.  Tyler,  21  N.  Y.  567,  ^  Horton  v.  Ruhling,  3  Nev.  498. 
568.  In  an  action  upon  an  account  stated,  the 

4  Button  V.  McCauley,  38  Barb.  413.  defence  of  mistake  or  error  in  any  of  its 
Compare  Tompkins  v.  Wadley,  3  N.  Y.  items  is  new  matter,  and  cannot  be  proved 
S.  C.  424,  430,  which  holds  that  in  such  under  a  general  denial,  Warner  v.  Myrick, 
an  action  an  act  of  unchastity  committed  16  Minn.  91 ;  and  the  defence  that  a  writ- 


EXAMPLES    OF   NEW   MATTER.  731 

§  708.  The  rule  is  well  settled  in  strict  accordance  with  the 
true  theory  of  pleading  under  the  codes,  that  all  defences  based 
upon  the  asserted  illegality  of  the  contract  in  suit,  which  admit 
the  fact  of  a  transaction  between  the  parties  purporting  to  be  an 
agreement,  and  apparently  binding,  but  which  insist  that  by 
reason  of  some  violation  of  the  law  the  same  is  illegal  and  void, 
are  new  matter,  and  must  be  set  up  in  the  answer  in  order  to  be 
provable.  A  few  examples  will  illustrate  this  rule.^  In  an 
action  against  a  city  upon  a  contract  made  with  the  plaintiff  by 
the  street  commissioners,  the  answer  alleged  that  these  officers 
did  not  proceed  according  to  the  statute  defining  their  powers, 
that  they  did  not  publish  the  proper  notice  of  the  letting  the 
contract  prescribed  by  the  city  charter,  and  that  the  contract 
itself  was  therefore  invalid.  To  this  answer  there  was  no 
reply  ;  and  as  the  code  of  Minnesota  required  a  reply  to  all  new 
matter,  the  defendant  claimed  that  these  averments  were  by  reason 
of  the  omission  admitted  to  be  true.  The  court  so  held,  pro- 
nouncing the  defence  new  matter  which  could  not  be  proved 
under  a  general  denial.^  The  defence  that  the  contract  in  suit 
was  entered  into  on  Sunday,  and  is  for  that  reason  illegal  and  void 
under  the  statute,  is  new  matter;^  and  that  the  demand  was  for 
liquors  sold  by  an  innkeeper  on  credit  contrary  to  statute  ;  *  and 
that  the  plaintiff  carried  on  business  by  himself  under  a  firm 
name,  there  being  no  partnership,  in  violation  of  a  statute  ;^  and 
that  the  contract  was  in  restraint  of  trade.^ 

§  709.  In  actions  uj^on  instruments  which  prima  facie  import  a 
consideration, — that  is,  upon  notes,  bills,  and  other  negotiable 
paper,  and  writings  under  seal,  —  the  defence  of  a  want  of  con- 
sideration is  new  matter  ; ''  but  where  there  is  no  such  presumption 
in  favor  of  the  contract,  the  same  defence  may  be  proved  under 

ten  instrument  sued  on  has  been  altered,  2  Nash  v.  St.  Paul,  11  Minn.  174,  178  ; 

Boomer  o.  Koon,  6  N.  Y.  S.  C.  645 ;  and  and  see  Finley  v.  Quirk,  9  Minn.  194, 200, 

the  tacts  wliich  authorize  the  application  203. 

of  the  "  scaling  laws  "  in  North  Carolina  »  Finley  v.  Quirk,  9  Minn.  194,  200, 

to   contracts   of    indebtedness.    Bank    of  203. 

Charlotte  v.  Britton,  66  N.  C.  365.  4  Denton  v.  Logan,  3  Mete.  (Ky.)  434. 

^  The  defence  of  fraud  is  new  matter,  ^  O'Toole  v.   Garvin,  3  N.   Y.   S.   C. 

and  must  be  pleaded  in  all  actions,  whether  118. 

brouglit   upon  contract  or  to  enforce  al-  *>  Prost  v.  More,  40  Cal.  347. 

leged  riglits  of  property  in  the  plaintitF,  ''  Frybarger  v.  Cokefair,  17  Ind.  404; 

Jenkins   v.  Long,  19   Ind.  28;  Farmer  v.  Bingham  v.  Kimball,    17   Ind.  396;  Du- 

Calvert,  44  Ind.  209,  212 ;  Daly  v.  Proetz,  bois  v.   Hermance,   56  N.    Y.   673,  674 ; 

20  Minn.  411,  417.  Beeson  v.  Howard,  44  Ind.  413,  415. 


732  CIVIL    REMEDIES. 

the  general  denial.^  Where  suit  is  brought  for  goods  sold  and 
delivered,  or  bargained  and  sold,  the  defence  of  a  warranty  on 
the  sale,  and  a  breach  thereof,  is  clearly  new  matter.^  If  an 
action  is  brought  for  the  possession  or  for  the  value  of  securities 
claimed  to  belong  to  the  plaintiff,  and  alleged  to  have  been  in^ 
some  manner  wrongfully  transferred  to  and  detained  by  the 
defendant,  the  defence  that  the  latter  purchased  the  same  in  good 
faith,  and  is  a  bona  fide  holder  thereof,  is,  in  general,  new  matter.^ 
It  is  plain,  however,  that  the  character  of  this  defence  Avill  largely 
depend  upon  the  form  of  the  complaint.  The  latter  might  natu- 
rally contain  averments  denying  the  good  faith  of  the  defendant's 
possession,  or  stating  a  want  of  consideration  in  the  transfer  to 
him,  so  that  a  mere  denial  would  raise  an  issue,  and  admit  evi- 
dence of  the  defence.  A  judgment  having  been  confessed  in 
which  the  statement  of  indebtedness  was  so  informal  and  incom- 
plete that  the  whole  was  prima  facie  void  as  against  other  credit- 
ors, an  action  was  brought  to  set  aside  the  judgment  so  confessed. 
The  answer  in  this  action  set  out  in  full  all  the  facts  of  the 
original  indebtedness  which  tended  to  show  that  an  actual  debt 
existed,  and  that  the  confession  was  in  good  faith  and  valid. 
This  answer  the  Supreme  Court  of  California  held  to  be  new 
matter :  it  was  in  avoidance,  and  not  in  denial  of  the  case  made 
by  the  complaint.* 

§  710.  The  distinction  between  new  matter  and  denials  was 
clearly  stated  in  a  recent  decision  by  the  Supreme  Court  of  Mis- 
souri. In  an  action  upon  an  attachment  bond,  the  petition  set  out 
the  bond,  and  alleged  as  a  breach  that  the  plaintiff  in  the  attach- 
ment suit  had  failed  to  prosecute  the  same,  and  that  the  attach- 
ment had  been  abated  by  a  judgment  of  the  court  in  that 
proceeding.  The  answer  admitted  the  bond,  denied  the  breach, 
and  asserted  that  the  original  suit  was  still  pending  by  a  motion 
in  arrest  of  judgment  and  for  a  new  trial.  No  reply  having 
been  pleaded,  these  averments  of  the  answer  were  held  at  the 
trial  to  have  been  admitted.  This  ruling  was  reversed  on  error, 
and  the  answer  was  held  to  be  merely  a  denial.^ 

*  See  ca«es  cited,  supra,  §  676.     In  the  ed.     The  answer  is  rather  an  argumen- 

latter   class  of  actions,    a   consideration  tative   denial.     The   complaint   in   effect 

must  be  averred  in  the  complaint.  charged  fraud  ;  and,  if  a  general  denial 

2  Fetherly  v.  Burke,  54  N.  Y.  646.  had  been  pleaded,  the  same  facts  would 

'  Weaver   v.  Barden,  49   N.  Y.    286,  have  been  evidence  in  its  support  to  dis- 

297,  per  Grover  J.  prove  the  fraud. 

4  Pond  V.  Davenport,  4-5  Cal.  225.  The         5  State  v.  Williams,  48  Mo.  210,  212  ; 

correctness  of  this  decision  may  be  doubt-  "  The    general    rule    is,    that   any    fact 


EXAMPLES    OF    NEW    MATTER.  733 

§  711.  Defences  in  Abatement,  and  'particularly  those  relating  to 
the  Joinder  and  Capacity  of  the  Parties.  The  nonjoinder  of  neces- 
sary parties  cannot  be  proved  nnder  the  general  denial ;  it  is  new 
matter,  and  must  be  pleaded  :  ^  nor  can  the  misjoinder  of  plaintiffs 
be  relied  upon  under  a  denial ;  the  question  must  be  raised  by  a 
demurrer  or  by  a  special  answer.'^  The  defence  that  the  plaintiff  is 
not  the  real  party  in  interest  is  new  matter.  A  general  averment, 
however,  to  that  effect,  is  not  enough:  the  facts  must  be  stated 
which  constitute  the  defence,  and  which  show  that  he  is  not  the 
real  party  in  interest.^  The  objection  that  the  plaintiff  has  not 
the  legal  capacity  to  sue,  unless  it  appears  on  the  face  of  the 
complaint  or  jjetition  so  that  it  can  be  raised  by  demurrer,  is  new 
matter.  Being  in  the  nature  of  a  dilatory  defence,  like  that  of 
a  defect  of  parties,  the  facts  which  constitute  it  must  be  stated 
with  certainty :  a  mere  general  averment  would  raise  no  issue.^ 
In  application  of  this  rule,  the  objection  that  the  plaintiff  or  the 
defendant  is  a  married  woman,  when  relied  on  as  a  defence,  can- 
not be  proved  under  a  general  denial,  but  must  be  pleaded  as  new 
matter  ;  ^  and  in  an  action  by  an  executor  or  administrator,  the 
general  denial  does  not  put  in  issue  the  plaintiff's  title  to  sue.^ 
The  defence,  that  the  action  was  commenced  before  the  cause  of 
action  had  accrued,  cannot,  it  has  been  held,  be  proved  under  a 
general  denial,  but  must  be  set  up  in  the  answer  specially.  Thus, 
in  an  action  for  work  and  labor  on  an  open  account,  where  the 
answer  was  a  general  denial,  the  defence,  that  the  account  was 

which   avoids  the  action,  and  which  the  Swift  v.  Ellsworth,  10  Ind.  205 ;  Lamson 

plaintiff  is  not  bound  to  prove  in  the  first  c.  Falls,  6  Ind.  309. 

instance  in  support  of  it,  is  new  matter;  *  Cal.  Steam.  Nav.  Co.  v.  Wright,   8 

but  a  fact  which  merely  negatives   the  Cal.  685;    Wade  v.   State,  37  Ind.   180, 

averments  of  the  petition  is  not  new  mat-  182  ;  Wright   v.   Wright,  54   N.   Y.  437, 

ter,  and  need  not  be  replied  to.     More-  441;  59  Barb.  505;  Burnside  y.  Matthews, 

over,  an  Answer  setting  up  new  matter  54  N.  Y.   78,82,  "must  be  pleaded  spe- 

by  way  of  defence   should  confess   and  cially  and  with  certainty  to  a  particular 

avoid    the    plaintiff's    cause    of    action,  intent;"    Barclay  r.  Quicksilver  Mining 

Bauer  v.  Wagner,  39  Mo.  385  ;  Northrup  Co.,   6   Lans.   25,   80 ;    Phoenix   Bank   v. 

V.  Miss.  Valley  Ins.  Co.,  47  Mo.  485.    The  Donnell,  40  N.  Y.  410. 

allegation  in  question  is  merely  in  denial  ^  Dillaye    v.    Parks,    31    Barb.    132  ; 

of  facts  which  the  plaintiff  must  prove  to  Johnson  v.  Miller,  47  Ind.  376,  377  ;  Lan- 

make  out  his /i;/»i(/y(/c(V  cause  of  action."  ders  «.  Douglas,  46  Ind.  522;  IMcDaniel 

1  Abbe  V.  Clarke,  31  Barb.  238.  v.  Carver,  40  Ind.  250;  Elson  v.  O'Dowd, 

2  Gillam  v.  Sigman,  29  Cal.  637.  40  Ind.  300;  Van  Metre  v.  Wolf,  27  Iowa, 

3  Jackson  v.  AVhedon,  1  E.  I).  Smith,  341  ;    Wagner   v.   Ewing,   44    Ind.   441 ; 
141 ;  Savage  v.  Corn  Exch.  F.  Ins.  Co.,  4  Kennard  v.  Sax,  3  Greg.  263,  265. 
Bosw.  1 ;  Raymond  v.  Pritchard,  24  Ind.  <•  White  v.  Moses,  11  Cal.  69. 

318;    Garrison    v.    Clark.    11    Ind.    369; 


734  CIVIL   REMEDIES. 

not  due  at  the  time  the  action  was  commenced  according  to  the 
terms  of  a  special  contract,  was  excluded  on  the  ground  that  it 
should  have  been  pleaded.'  The  defence,  that  another  action  is 
pending  for  the  same  cause,  must  be  specially  pleaded,  unless  it  is 
raised  by  demurrer.^ 

§  712.  Miscellaneous  Defences.  The  defence  of  license  is  new 
matter,  and  cannot  be  proved  unless  pleaded.^  According  to  the 
decided  weight  of  authority,  an  estoppel  in  jjciis  cannot  be  proved 
under  a  general  denial,  but  is  new  matter.*  An  accord  and  satis- 
faction is  also  new  matter ;  ^  and  a  discharge  in  bankruptcy  or 
insolvency  ;  ^  and  a  defence  based  upon  a  statutory  provision  pro- 
hibiting banks  from  paying  out  notes  not  received  by  tliem  at 
par;"  and  a  defence  founded  upon  the  plaintiff's  failure  to  per- 
form a  contract  collateral*  to  the  demand  set  up  in  the  complaint, 
and  upon  which  the  liability  of  the  defendant  depended.^ 

§  713.  Statute  of  Limitations.  Different  rules  prevail  in  the 
different  States  in  respect  to  pleading  the  Statute  of  Limitations. 
In  some,  by  reason  of  an  express  provision  of  their  codes,  the 
defence  must  always  be  specially  set  up  in  the  answer,  and  can 
never  be  raised  by  demurrer,  even  though  the  averments  of  the 
complaint  should  show  that  the  cause  of  action  is  barred.  In 
others  it  may  alwaj^s  be  taken  advantage  of  by  demurrer  when- 
ever the  complaint  or  petition  discloses  a  cause  of  action  which 
appears  to  be  barred  by  the  statute.  The  courts  of  still  other 
States  occupy  a  middle  ground  between  these  extremes.  If  the 
provisions  of  the  statute  relied  on  are  not  absolute,  but  contain 
exceptions  or  provisos  within  which  the  case  could  possibly  fall, 
and  which  might,  therefore,  prevent  the  bar  of  the  statute  from 
applying  to  the  cause  of  action,  the  demurrer  is  never  proper, 
because,  although  not  so  alleged,  the  case  might  come  within  the 

1  Hagan  v.  Burch,  8  Iowa,  309 ;  Smith  Auger,  4  Minn.  217.  An  estoppel  by  judg- 
r.  Holmes   19  N.  Y.  271.  nient  must  be  pleaded  if  there  is  or  has 

2  Wals'worth  v.  Johnson,  41  Cal.  61.  been  any  opportunity  to  do  so.     Clink  v. 

3  Beaty  v.  Swarthout,  32  Barb.  293,  Thurston,  47  Cal.  21,  29  ;  per  contra,  La- 
294  ;  Haight  v.  Badgeley,  15  Barb.  499;  rum  v.  Wilmer,  35  Iowa,  244,  247. 
Snowden  v.  Wilas,  19  Ind.  10  ;  Gilbert  v.  ^  Coles  v.  Soulsby,  21  Cal.  47,  50. 
Sage,  5  Lans.  287  ;  Alford  v.  Barnum,  45  ^  Cornell  v.  Dakin,  38  N.  Y.  253,  256. 
Cal.  482,  485;  Chase   v.   Long,  44   Ind.          '^  Codd  v.  Kathbone,  19  N.  Y.  37. 
427^428.  •*  Blethen  v.  Blake,  44  Cal.  117;  and 

4  Wood  V.  Ostram,  29  Ind.  177,  186  ;  the  defence  of  irregularity  on  the  part  of 
Davis  f.  Davis,  26  Cal.  23;  Etclieborne  the  arbitrators  in  an  action  upon  an  award, 
V.  Auzerais,  45  Cal.  121  ;  Clark  v.  Huber,  l->ay  v.  Hammond,  57  N.  Y.  479,  484. 

25  Cal.   693,   597 ;    but  see   Caldwell  v. 


STATUTE   OF   LIMITATIONS.  735 

exception  or  proviso :  the  answer  is  then  the  only  mode  of  pre- 
senting the  defence.  But  if  the  particular  provisions  of  the 
statute  are  absolute,  and  contain  no  such  exceptions  or  provisos 
within  which  the  case  could  possibly  fall,  a  demurrer  may  be 
interposed  when  the  objection  appears  upon  the  face  of  the  plain- 
tiff's pleading;  but  if  it  does  not  so  appear,  the  defence  must  be 
set  up  by  answer. 

§  714.  In  New  York  the  rule  is  settled,  and  applied  to  all  actions 
whether  legal  or  equitable,  that  the  effect  of  the  Statute  of  Limi- 
tations as  a  defence  can  only  be  made  available  by  an  answer ; 
that  a  demurrer  can  under  no  circumstances  raise  the  issue  ;  and 
finally,  that  the  defence  is  new  matter. ^  In  Indiana,  if  the  pro- 
vision of  the  statute  invoked  contains  no  exceptions  or  provi- 
sos, and  it  appears  on  the  face  of  the  complaint  that  the  cause 
of  action  is  barred,  the  defendant  can  demur ;  but  when  there 
are  exceptions  or  provisos  in  the  operative  clause  of  the  statute 
relied  upon,  the  defence  can  only  be  set  up  by  a  special  answer, 
and  cannot  be  made  available  under  a  general  denial.^  Even  in 
those  States  where  the  statute  may  be  taken  advantage  of  by 
demurrer,  as  well  as  in  all  the  others,  it  is,  when  set  up  by  answer, 
new  matter,  and  can  never  be  proved  under  a  denial,  either  gen- 
eral or  special.^      When  the  Statute  of  Limitations  of  another 

1  Sands  v.    St.   John,   36   Barb.  628 ;  onhj  be  taken  advantage  of  by  answer  in 

Baldwin  v.  Martin,  14  Abb.  Pr.  n.  s.  9.  tlie  State  of  Wisconsin.  Hartson  i-.  Hardin, 

-  Perkins  v.  Rogers,  35  Ind.  124,  141,  40  Cal.  264.     The  rule  is  settled  in  many 

and  cases  cited ;  Hanna  v.  Jeffersonville,  States,  that  when  it  affirmatively  appears 

&c.  R.  R.,  32  Ind.  113;  but  see  Matlock  on  the  face  of  the  complaint  or  petition 

V.  Todd,  25  Ind.  128,  which  seems  to  hold  tiiat  the  cause  of  action  is  barred  by  the 

that  a  demurrer  is  never  proper  in  legal  statute,  and  only  tlien,  the  defendant  may 

actions,  but  may  be  used  in  equitable  ac-  demur;  otherwise  he  must  plead  the  de- 

tions,  according  to  the  former  practice  in  fence  specially,  since  it  is  never  admis- 

equity.  sible  under  the  general  denial,  except  in 

3  McKinney  v.  McKinnej',  8  Ohio  St.  the  action  to  recover  possession  of  land  in 
423;  Backus  v.  Clark,  1  Kans.  303;  certain  States  by  virtue  of  express  provi- 
Howell  V.  Howell,  15  Wise.  55,  59.  This  sions  of  their  codes.  It  is  so  held  in  Ohio, 
last  case  holds  that  the  defendant  may  Huston  v.  Craighead,  23  Ohio  St.  198, 
c?era!(r,  altliough  the  Wisconsin  code  enacts  209,  210;  in  Minnesota,  Davenport  v. 
that  "the  objection  that  the  action  was  Short,  17  Minn.  24,  the  court  saying  that 
not  commenced  within  the  time  limited  they  would  not  extend  the  rule  laid  down 
can  only  be  taken  by  answer ;"  R.  S.  ch.  in  Kennedy  v.  Williams,  11  Minn.  314; 
138,  §  1.  The  court  said  that  "  answer  "  McArdle  v.  McArdle,  12  Minn.  98  ;  East- 
must  be  taken  in  its  widest  sense  of  any  man  v.  St.  Anthony's  Falls  W.  P.  Co.,  12 
defensive  pleading  including  a  demurrer.  Minn.  137;  Hoyt  v.  McNeil,  13  Minn. 
But  see  the  later  case  of  Tarbox  v.  Su-  390  ;  in  Kansas,  Parker  v.  Berry,  12 
pervisors,  34  Wise.  558,  which  expressly  Kans.  351 ;  in  California,  Brennan  v.  Ford, 
holds  that  the  Statute  of  Limitatio/is  can  46  Cal.  7, 12  ;  in  Iowa,  Robinson  v.  Allen, 


736  CIVIL    REMEDIES. 

State  or  county  is  relied  upon  as  a  defence,  the  answer  must 
contain  all  the  averments  of  fact  necessary  to  bring  the  case 
within  the  provisions  of  such,  foreign  enactment :  nothing  will  be 
presumed  in  favor  of  the  pleader.^ 


SECTION    FIFTH. 
THE    UNION    OF   DEFENCES    IN   THE   SAME   ANSWER. 

§  715.  All  the  codes,  with  some  slight  difference  in  the  lan- 
guage, but  with  none  in  the  meaning  and  effect  of  the  clause, 
provide  that  the  defendant  may  set  up  in  his  answer  as  many 
defences  and  counterclaims  and  set-offs  as  he  may  have,  whether 
they  be  such  as  have  heretofore  been  denominated  legal  or  equi- 
table, or.both.  When  defences  are  thus  united,  they  must  each 
be  separately  stated,  and  refer  to  the  causes  of  action  they  are 
intended  to  answer.  I  shall,  in  the  present  section,  collect  the 
practical  rules  which  have  been  adopted  by  the  courts  in  con- 
struing this  provision,  touching  the  mode  of  pleading  different 
defences  in  one  answer. 

I.  How  the  Separate  Defences  should  be  stated. 

§  716.  The  distinction  between  partial  and  full  defences  has 
already  been  pointed  out.  Assuming  that  the  defences  are  not 
intended  to  be  partial,  each  must  of  itself  be  a  complete  answer 
to  the  whole  cause  of  action  against  which  it  is  directed,  as  per- 
fectly so  as  though  it  were  pleaded  alone.  It  is  not  necessary 
that  each  defence  should  answer  the  entire  complaint  when  that 
contains  two  or  more  distinct  causes  of  action,  because  these 
causes  of  action  may  depend  upon  separate  circumstances,  and 
demand  separate  answers.  If  a  defence,  however,  is  addressed 
to  the  whole  complaint,  as  such,  it  must  completely  controvert 
the  whole.  The  rule,  as  stated  in  its  general  form,  is,  that  each 
defence  must  be  sufficient  in  itself,  in  its  material  allegations  or 
its  denials,  to  constitute  an   answer  to  the  cause   or  causes  of 

3?  Iowa,  27,  29  ;  Sliearer  r.  Mills,  35  Iowa,  a  general  denial,  wlien  the  action  is  for 

499  ;  Moulton   v.   Walsh,   30   Iowa,  361  ;  the  recovery  of  land,  Bledsoe  v.  Siinms, 

Springer  v.  Clay  Co.,  35  Iowa,  241  ;  in  53  Mo.  305,  307. 

Nebraska,  Mills  v.  Rice,  3  Neb.  76,  87 ;  in  i  Gillett  v.  Hill,  32  Iowa,  220. 
Missouri  the  defendecan  be  proved  under 


UNION    OF   DEFENCES.  737 

action  against  which  it  is  directed,  and  thus  to  defeat  a  recovery 
thereon.  This  proposition  refers  to  the  substance  of  the  defence. 
In  reference  to  the  form  and  manner  of  stating  this  substance,  it 
must,  either  by  actual  statement  in  full,  or  by  a  proper  reference 
to  and  adoption  of  matter  in  another  defence  found  in  the  same 
answer,  contain  averments  of  all  the  material  facts  or  denials 
which  together  make  up  the  defence.  Each  must  in  its  com- 
position be  complete,  sufficient,  and  full ;  it  must  stand  upon  its 
own  allegations :  it  cannot  be  aided,  nor  its  imperfect  and  partial 
statements  helped  out,  by  matter  found  in  another  defence,  unless 
such  matter  is  expressly  referred  to,  and  in  an  express  manner 
adopted  or  borrowed  from  that  other,  and  made  a  part  of  itself. 
The  reference,  however,  to  the  former  defence,  and  the  adoption 
of  its  matter,  if  permitted  at  all,  must  be  express  ;  for  otherwise  the 
allegations  of  one  cannot  be  treated  as  incorporated  in  or  helping 
out  those  of  another.  This  rule  is  well  settled  by  the  authorities, 
although  often  disregarded  in  practice.*  If  the  defence  is  pro- 
fessedly a  partial  one,  the  foregoing  rule  applies  only  so  far  as 
respects  the  manner  and  form  of  stating  the  facts.  In  a  partial 
as  well  as  in  a  full  defence,  the  averments  cannot  be  aided  by 
matter  found  in  another  defence,  unless  the  same  is  expressly 
referred  to  and  adopted.  It  should  be  observed  also,  that  in  the 
case  of  answers  containing  several  defences,  as  well  as  of  com- 
plaints containing  several  causes  of  action,  certain  allegations 
may  be  introductory,  not  forming  a  portion  of  either  defence  in 
particular,  but  belonging  alike  to  all,  so  that  they  should  be  once 
made  at  the  commencement  of  the  answer  before  any  one  of  the 
separate  defences  is  stated. 

§  717.  In  this  connection   I  shall  offer  a  few  suggestions  in 

1  Baldwin  i'.  U.  S.  Tel.  Co.,  54  Barb,  murrable."  Defences  should  be  separately 
505,  517:  "By  tlie  well-settled  rules  of  stated  and  numbered:  but  a  failure  to 
pleading,  each  answer  [defence]  must  of  comply  with  this  rule  can  onl,y  be  taken 
itself  be  a  complete  answer  to  the  whole  advantage  of  by  a  motion  to  correct ;  if 
complaint,  as  perfectly  so  as  if  it  stood  such  motion  is  not  made,  the  objection  is 
alone.  Unless  it,  in  terms,  adopts  or  waived,  Truitt  v.  Baird,  12  Ivans.  420, 
refers  to  the  matter  contained  in  some  423.  Each  defence  must  be  complete  in 
other  answer,  it  must  be  tested  as  a  itself,  and  cannot  be  aided  by  reference  to 
pleading  alone  by  the  matter  itself  con-  the  allegations  in  another,  Potter  v.  Ear- 
tains."  Nat.  Bank  of  Michigan  v.  Green,  nest,  45  Ind.  416  ;  Mason  v.  Weston,  29 
33  Iowa,  140,  144:  "When  the  answer  Ind.  5G1  ;  Day  v.  Vallette,  25  Ind.  42; 
contains  separate  defences,  each  defence  Leabo  v.  Detrick,  18  Ind.  414 ;  National 
must  be  sufficient  in  itself:  it  cannot  be  Bank  v.  Green,  33  Iowa,  140 ;  Knarr  v. 
aided  by  matter  in  another  defence.  If  Conaway,  42  Ind.  260,  264. 
not  thus  complete  and  sufficient,  it  is  de- 

47 


738  CIVIL   REMEDIES. 

reference  to  the  proper  mode  of  pleading  specific  denials  ;  a  mode 
which  is  i^erhaps  not  in  terms  prescribed  by  the  codes,  but  which 
is,  I  think,  plainly  included  within  the  sjjirit  of  the  statutory 
requirements,  and  which,  if  universally  adoi)ted,  would  do  much 
to  perfect  the  practical  workings  of  the  theory  which  lies  at  the 
foundation  of  tlie  reformed  jjrocedure.  The  advocates  of  the 
common-law  pleading  have  never  ceased  to  urge  that  it  served  to 
bring  out  and  present  to  the  jury  for  their  decision  a  single  issue^ 
—  the  affirmation  and  negation  of  a  single  fact,  the  verdict  upon 
which  determined  the  entire  controversy.  This  theory  is  certainly 
very  beautiful.  We  know,  however,  that  in  practice  the  results 
were  far  different.  Instead  of  this  single  issue,  in  the  actions  of 
assumpsit,  of  debt  on  simple  contract,  and  of  trover,  the  general 
issue  had  come  to  be  almost  the  only  ans_wer  used,  and  under  it 
nearly  eveiy  possible  defence  was  admissible.  This  evil  produced 
the  reform  of  1834  in  England.  That  reform  consisted  in  limiting 
the  effect  of  the  general  issue  in  respect  of  the  defences  which 
could  be  admitted  under  it.  All  matters  in  confession  and  avoid- 
ance were  required  to  be  specially  pleaded  ;  and  many  of  the 
matters  stated  in  the  declaration,  which  went  to  make  up  the 
cause  of  action,  were  required  to  be  specifically  denied  by  a 
separate  traverse  to  each.  To  illustrate  :  In  the  action  of  as- 
sumpsit, if  the  contract  sued  on  was  express,  the  general  issue  of 
non-assumpsit  only  denied  the  making  of  the  contract,  the  prom- 
ise ;  if  it  was  implied,  the  same  general  issue  only  denied  the 
existence  of  the  facts  from  which  the  promise  would  by  law  be 
inferred.  If  the  defendant  desired  to  deny  the  alleged  breach, 
he  was  obliged  to  do  so  by  a  sej)arate  specific  denial,  or 
"  special  traverse  "  as  it  was  called.  In  this  manner  the  issues 
were  made  and  kept  single  ;  at  least,  if  there  were  several  issues 
formed  by  the  various  traverses  and  pleas  comprised  in  the  same 
answer,  each  was  single,  —  the  affirmation  and  negation  of  one 
material,  issuable  fact.  Each  "  special  traverse  "  was  a  distinct 
plea  by  itself,  and  denied  some  averment  in  the  declaration  which 
was  necessary  to  the  maintenance  of  the  action,  so  that,  if  the 
defendant  was  successful  on  any  one  traverse,  he  defeated  the 
entire  recovery  in  respect  to  that  cause  of  action.  This  great 
reform  undoubtedly  restored  the  common-law  system  of  pleading 
somewhat  to  its  original  theory. 

§  718.  While  a  similar  condition  of  affairs  was  existing  in  this 


UNION    OF   DEFENCES.  7? 9 

countiy,  the  Reformed  American  Procedure  was  introduced  witli 
its  radical  changes,  its  complete  departure  from  the  ancient 
notions.  Enemies  of  the  system,  both  on  the  bench  and  at  the 
bar,  have  constantly  reiterated  the  objection,  that  it  made  no  pro- 
vision for  the  development  through  the  means  of  pleading,  and 
for  the  presentation  to  juries,  of  single  and  separate  issues  of  fact. 
No  objection  could  be  more  grossly  unfounded.  The  common- 
law  methods,  as  wrought  out  by  the  courts,  had  certainly  and 
notoriously  failed  to  produce  that  desired  result ;  and  these 
objectors,  when  they  assailed  the  code  and  comj^ared  it  with  the 
former  system,  obstinately  shut  their  eyes  to  what  that  system 
actuaUy  did  in  its  every-day  working,  and  only  repeated  what  the 
theorists  asserted  that  it  ought  to  do.  If  the  spirit  and  design  of 
the  code,  as  clearl}^  shown  through  all  of  its  important  clauses  and 
sections,  were  accepted  and  carried  out  by  the  courts  and  the  pro- 
fession, and  if  its  plain  requirements  were  obeyed  to  the  full  extent 
of  their  meaning,  the  very  same  beneficial  results  attained  in  Eng- 
land by  the  legislation  and  judicial  action  of  1834  would  be  ac- 
complished wherever  the  new  procedure  has  been  established. 

§  719.  It  seems  to  me  to  be  the  evident  purpose  of  the  codes 
that  all  issues  of  fact  should  be  separated  and  made  single  ;  and 
that,  if  such  a  practice  has  not  yet  been  generally  attained,  it  is 
because  the  rules  prescribed  by  the  statute  have  been  violated  or 
ignored  ;  in  short,  the  fault  cannot  be  charged  to  the  system 
itself.  The  codes  expressl}^  prescribe  that  each  defence  must  be 
separate  and  distinct,  and  must  be  so  pleaded.  In  respect  to 
defences  of  new  matter,  this  requirement  is  as  precise  and  exact- 
ing as  any  rule  of  the  common  law.^  It  is  the  duty  of  courts  to 
insist  upon  a  compliance  with  this  statutory  regulation,  if  juries 
are  to  be  at  all  aided  in  their  labors  by  the  issues  as  presented 
upon  the  records.  To  combine  a  defence  of  accord  and  satisfac- 
tion, for  example,  with  one  of  payment,  is  as  marked  a  violation 
of  the  new  procedure  as  of  the  common-law  theory.  Is  there 
any  different  principle  or  rule  in  reference  to  defences  of  denial  ? 
I  answer.  No.    No  such  difference  can  be  pointed  out  in  the  stat- 

1  See  Kose  v.  Hurley,  39  Ind.  77,  81.  been  broken,  and  of  fraudulent  represen- 

In  an  action  upon  a  note  given  for  the  tations  in  respect  to  tlie  article  made  by 

price  of  an  article  sold    by  the  plaintiff  the  seller.     This  defence  was  overruled 

to  the  defendant,  one  defence  of  the  an-  on  demurrer.     The  opinion  of  Downey 

swer  contained  mingled  allegations  of  a  J.  is  valuable  and  instructive, 
warranty  given   on   the  sale  which   had 


740  CIVIL   REMEDIES. 

lite  itself;  and  this  fact  alone  is  sufficient  to  show  the  correctness 
of  the  answer.  But  the  proof  of  its  correctness  is  positive.  The 
code  permits  a  general  denial  which  controverts  all  the  material 
allegations  of  the  complaint  or  petition,  and  thus  presents  abroad 
issue,  but  still  an  issue  which  is  not  incumbered  with  any  matter 
by  way  of  confession  and  avoidance.  The  code  also  permits 
specific  denials  ;  that  is,  a  separate  denial  of  some  material  allega- 
tion of  the  complaint  or  petition.  These  specific  denials  are  iden- 
tical in  design  and  effect  ivith  the  special  traverses  provided  for  hy 
the  English  rules  of  1834.  Each  specific  denial  should  be  an 
entire  defence  by  itself,  and  should  be  so  pleaded,  because  it 
should  be  the  denial  of  some  single,  material,  issuable  matter 
averred  in  the  complaint  necessary  to  the  existence  of  the  cause 
of  action,  so  that,  if  sustained,  it  would  entirely  defeat  a  recovery 
on  that  cause  of  action.  As  the  code  requires  each  defence  to  be 
separately  stated,  it  follows  that  a  specific  denial  should  always 
constitute  by  itself  a  distinct  and  complete  defence,  and  should 
be  pleaded  in  such  form,  as  much  so  as  any  defence  of  new 
matter.  If  the  true  design  and  intent  of  the  code  in  this  respect 
were  fully  carried  out,  two  or  more  specific  denials  could  never 
be  combined  in,  one  and  the  same  defence.  The  answer  might 
contain  several  such  denials,  but  each  would  be  stated  as  one 
entire,  independent  defence,  distinct  from  alL  the  others,  and  thus 
presenting  one  issue  of  fact,  arising  from  the  averment  of  the 
complaint  or  petition  and  its  traverse. 

§  720.  If  the  mode  of  pleading  thus  described  should  be  gen- 
erally adopted,  —  and  it  seems  to  be  in  strict  accordance  with  both 
the  design  and  the  requirements  of  the  codes,  —  the  immediate 
result  would  be  the  forming  of  single  issues  on. the  record  for  the 
consideration  of  the  jury,  depending  upon  one  affirmation  and 
one  negation,  far  more  perfectly  in  the  actual  practice  than  was 
accomplished  while  the  ancient  procedure  remained  in  existence. 
The  confused  method  of  pleading  which  has  undoubtedly  become 
too  common,  the  failure  to  distinguish  and  extract  the  material 
issues  from  the  overlying  mass  of  useless  details  which  frequently 
incumbers  the  record,  is,  therefore,  no  fault  of  the  codes  ;  it  is 
rather  in  direct  opposition  to  their  intent  and  their  express 
enactments  ;  and  it  has  done  far  more  than  all  other  causes  to 
diminish  their  usefulness,  and  to  hinder  the  complete  reform 
which  they  Avere  designed  to  consummate.     To  whatever  agency 


UNION    OF   DEFENCES.  741 

this  partial  failure  is  to  be  attributed,  one  thing  is  certain,  — 
that  the  courts  have  ample  power  to  remedy  it,  and  to  accom- 
plish all  the  beneficial  objects  of  the  new  procedure  whicli  were 
looked  for  by  its  authors. 

II.    Wliat  Kinds  of  Defences  may  he  joined  in  otie  Ansiver  ;  tJiose 
in  Abatement,  and  those  in  Bar. 

§  721.  It  is  now  settled,  in  direct  opposition  to  the  common- 
law  rule,  that  defences  which  seek  only  to  abate  the  particular 
action  in  which  they  are  pleaded  may  be  united  with  those  which 
seek  to  bar  all  recovery  upon  the  cause  of  action.  Being  joined 
in  the  same  answer,  they  are  to  be  tried  and  determined  together 
at  the  one  trial.  The  only  possible  difficulty  in  the  practical 
operation  of  this  rule  arises  from  the  different  effects  of  a  judg- 
ment in  favor  of  the  defendant,  rendered  upon  one  or  the  other 
of  these  classes  of  defences.  As  such  a  decision  upon  the  former 
class  does  not  destroy  the  plaintiff's  right  of  action,  nor  prevent 
him  from  properly  commencing  and  maintaining  another  suit  for 
the  same  cause,  while  a  similar  decision  upon  the  latter  class  does 
produce  that  final  effect  upon  the  right,  and  as  by  a  general  ver- 
dict given  for  the  defendant  upon  all  the  issues  contained  in  the 
record,  and  a  judgment  entered  thereon,  it  might  be  difficult,  and 
perhaps  impossible,  to  determine  which  of  these  results  should  fol- 
low from  the  judgment  thus  pronounced,  it  is  plain,  that,  at  the 
trial  of  an  action  in  which  the  answer  unites  the  two  kinds  of 
defence, -the  judge  should  carefully  distinguish  the  issues  arising 
from  them,  and  should  submit  them  separately  to  the  juiy,  and 
direct  a  separate  and  special  verdict  upon  each.  By  pursuing 
this  course,  the  record  would  show  exactly  the  nature  of  the  de- 
cision, and  of  the  judgment  entered  thereon.  This  mode  of  pro- 
cedure has  been  sanctioned  by  the  highest  courts. ^ 

1  Sweet  V.  Tuttle,  14  N.  Y.  465,  468  ;  Ins.  Co.,  57   Mo.   86,    which   retain   the 

Gardner  v.  Clark,  21  N.  Y.  399  ;  Mayhew  common-law  rule,  and  hold  that  a  defence 

V.  Robinson,  10  How.  Pr.  102;  Bridge  v.  in  abatement  is  waived  by  pleading  mat- 

Payson,  5  Sandf.  210;  Freeman   v.   Car-  ter  in  bar.     In  Gar<lner  v.  Clarke,  supra, 

penter,  17  Wise.  126  ;  Thompson  i?.  Green-  SeldenJ.  said  (p.  401)  :  "  The  only  serious 

wood,  28  Ind.  327  ;  Bond  v.  Wagner,  28  inconvenience  suggested  as  likely  to  re- 

Ind.  462.     But  see,  per  contra,  Hopvvood  suit  from  this  construction  of  the  code  is, 

V.  Patterson,  2  Oreg.  49 ;  Fordyce  w.  Hat-  that  when  an  answer  embraces 'both   a 

horn,  57  Mo.  120 ;  Cannon  r.  McManus,  defence  in  abatement  and  one  in  bar,  if 

17  Mo.  345 ;  Rippsteia  v.  St.  Louis,  &c.  the  jury  find  a  general  verdict,  it  will  be 


742  CIVIL   REMEDIES. 

§  722.  Incorisistent  Defences.  Three  different  questions  are 
presented  under  this  head  :  (1)  Can  inconsistent  defences  be 
united  in  the  same  answer  ?  (2)  When  are  particuUir  defences 
inconsistent  ?  (3)  If  a  denial  and  a  defence  by  way  of  confession 
and  avoidance  are  joined,  do  the  admissions  of  the  latter  over- 
come the  denials  of  the  former,  so  that  the  plaintiff  is  relieved 
from  the  necessity  of  proving  the  allegations  denied  ?  Althougli 
these  questions  are  clearly  distinct,  yet  the  two  former  have 
often  if  not  generally  been  confounded  in  the  same  decisions,  so 
that  it  will  be  difficult  to  keep  them  entirely  separate  in  the  dis- 
cussion without  much  repetition.  Assuming  that  the  defences 
are  utterly  inconsistent,  the  rule  is  established  by  an  overwhelm- 
ing weight  of  judicial  authority,  that,  unless  expressly  prohibited 
by  the  statute,  they  may  still  be  united  in  one  answer.  It  follows 
that  the  defendant  cannot  be  compelled  to  elect  between  such 
defences,  nor  can  evidence  in  favor  of  either  be  excluded  at  the 
trial  on  the  ground  of  the  inconsistency.^  Notwithstanding  this 
array  of  authorities,  a  different  rule  prevails  in  a  few  States. 
The  Supreme  Court  of  Minnesota  warmly  insists  that  the  most 
important  design  of  the  code  was  to  compel  the  parties  to  tell 
the  truth  in  their  pleadings ;  that  the  decisions  have  generally 
violated  this  principle  ;  and  therefore  emphatically  declares  that 
inconsistent  defences  cannot  be  permitted.  Inconsistent  defences 
are  also  forbidden  in  Missouri,  and  perhaps  in  one  or  two  other 
States.2 

impossible    to    determine    whether    the  there  is  no  distinction  in  this  respect  be- 

jndgment     rendered    upon     the    verdict  tween   verified  and    unverified   answers ; 

should  operate  as  a  bar  to  another  suit  Bell  v.   Brown,  22   Cal.  671;  Willson  r. 

for  the  same  cause  of  action  or  not.     It  Cleaveland,  80  Cal.  192 ;  Mott  v.  Burnett, 

would,  however,  be  the  duty  of  the  judge  2  E.   D.   Smith,  50,  52;    HoUenbeck   v. 

at  the  circuit,  in  such  a  case,  to  distin-  Clow,  9  How.  Pr.  289  ;  Butler  v.  Went- 

guish  between  the   several   defences   in  worth,  9  How.  Pr.  282;  17  Barb.  G49  ; 

submitting  the  cause  to  tiie  jury,  and  to  Smith  v.   Wells,  20  How.  Pr.  158,  167; 

require  tlieni  to  find  separately  upon  these,  ^'ail  r.  Jones,  31  Ind.  467;  Crawford  v. 

In  that  way,  it  is  probable  that  the  con-  Adams,  Stanton's  Code  (Ky.),91;  Wes- 

fiision  which  might  otherwise  result,  may,  ton  v.  Lundey,  33  Ind.  486,  488. 
in  most  cases,  be  avoided.     At  all  events,  ^  Derby  f.  Gallup,  5   Minn.   119,    120, 

the  code  admits,  I  think,  no  other  con-  an  action  for  taking  and  carrying  away 

struction."  goods.     The   answer   contained   two  de- 

1  Springer   v.   Dwyer,    50   N.  Y.  19 ;  fences  :  1.  A  general  denial.    2.  Admitted 

Buhne   v.    Corbett,    43    Cal.  264,   which  the  taking,  and  justified  it  under  process, 

liolds  directly  that  a  defendant  may  plead  The  opinion  of  Atwater  J.  is  very  able, 

as  many  defences  as  he  pleases.     Each  and  difficult  to  be  answered  on  principle. 

must  be  consistent  witli  itself,  but  need  See  also  Cook  y.  Finch,  19  Minn.  407, 411 ; 

not  be  consistent  with  the  others;  and  Conway  y.  Wharton,  18  Minn.  158,  160; 


INCONSISTENT   DEFENCES. 


743 


§  723.  In  many  instances  the  conrts  have  simply  dedared  that 
the  particular  defences  united  in  the  answers  before  them  were 
not  in  fact  inconsistent,  and  have  not  passed  upon  the  question 
in  its  general  form.  In  many  of  these  cases,  however,  the 
defences  were  apparently  as  inconsistent  as  those  which  have 
been  rejected  by  other  courts  in  the  decisions  last  quoted.  I 
have  placed  in  the  foot-note  a  number  of  examples,  and  have 
indicated  the  nature  of  the  defences  thus  suffered  to  be  united.^ 

§  724.  When  a  denial  is  pleaded  in  connection  with  a  defence  of 
new  matter,  or  two  defences  of  new  matter  are  set  up,  the  admis- 
sions in  the  one  can  never  be  used  to  destroy  the  effect  of  the 
other.  The  concessions  of  a  defence  by  way  of  confession  and 
avoidance  do  not  obviate  the  necessity  of  proving  the  averments 
contradicted  by  the  denial.  This  rule  is  universal.  Even  in 
those  States  where  inconsistent  defences  are  not  permitted  to 
stand,  the  remedy  is  by  striking  out,  or  by  compelling  an  elec- 
tion, and  not  by  using  the  admissions  of  one  to  destroy  the  issues 
raised  by  the  other.^ 

S  725.   When  the  facts  stated  in  an  answer  constitute  both  a 


Adams  v.  Trigg,  37  Mo.  141  :  "A  party 
cannot  interpose  a  denial,  and  then  avail 
himself  of  a  confession  and  avoidance  ;  " 
Atteberry  v.  Powell,  29  Mo.  429,  a  gen- 
eral denial  and  justification  in  slander 
held  inconsistent ;  Fugate  v.  Pierce,  49 
Mo.  441,  449;  but  compare  Nelson  v. 
Brodiiack,  44  Mo.  596,  which  holds  that 
denials  and  defences  of  confession  and 
avoidance  are  not  necessarily  inconsistent ; 
Auld  V.  Butcher,  2  Kans.  135 ;  and  see 
Baird  v.  Morford,  29  Iowa,  581,  534,  535. 
The  following  New  York  cases,  mostly  at 
Special  Term,  wliich  hold  that  inconsist- 
ent defences  cannot  be  permitted,  have 
been  expressly  overruled  by  tlie  more  re- 
cent ones  in  the  same  State  cited  above 
in  tlie  preceding  note.  Hoe  v.  Rogers,  8 
How.  l^r.  356  ;  Schneider  v.  Schultz,  4 
Sandf.  664;  Arnold  v.  Dimon,  4  Sandf. 
680. 

1  Nelson  v.  Brodhack,  44  Mo.  596,  ac- 
tion of  ejectment,  general  denial,  and  Stat- 
ute of  Limitations  ;  holds  that  general 
denial  and  confession  and  avoidance  are 
not  necessarily  inconsistent,  and  overrules 
Bauer  v.  Wagner,  39  Mo.  385 ;  and  see 
McAdow  V.  Ross,  53  Mo.  199,  202  ;  Kelly 
V.  Bernheimer,  3  N.  Y.  Sup.  Ct.  140,  the 


court  will  not  compel  an  election  between 
defences  "  unless  they  are  so  far  incon- 
sistent tliat  both  cannot  properly  coexist 
in  the  same  transaction;"  Kellogg  v. 
Bilker,  15  Abb.  Pr.  286,  a  general  denial, 
Statute  of  Limitations,  and  release,  are  not 
inconsistent;  Lansing  v.  Parker,  9  How. 
Pr.  288,  in  assault  and  battery,  a  general 
denial,  self-defence,  and  defence  of  posses- 
sion of  land,  are  not  inconsistent ;  Ostrom 
I'.  Bixby,  9  How.  Pr.  57,  denial,  and  Stat- 
ute of  Limitations  ;  Ormsby  v.  Douglas,  5 
Duer,  665,  slander,  denial,  and  ■justifica- 
tion ;  Hackley  v.  Ogmun,  10  How.  Pr.  44, 
action  to  recover  possession  of  chattels, 
general  denial,  and  a  justification  of  the 
taking;  Bootli  v.  Sherwood,  12  Minn. 
426,  trespass  to  lands;  answer,  (1)  denies 
title,  and  (2)  license;  Pike  v.  King,  16 
Iowa,  49,  general  denial  and  set-off,  Will- 
son  u.  Cleaveland,  30  Cal.  192,  ejectment, 
denial  of  title,  and  Statute  of  Limitations. 
■-  Quigley  V.  Merritt,  11  Iowa,  147  ; 
Shannon  v.  Pearson,  10  Iowa,  588 ;  Grash 
r.  Safer,  6  Iowa,  301  ;  Siter  v.  Jewett,  33 
Cal.  92 ;  Nudd  v.  Tiiompson,  34  Cal.  39, 
47  ;  Buhne  v.  Corbett,  43  Cal.  264.  See 
Town  of  Venice  v.  Breed,  65  Barb.  597, 
603,  per  Muilin  J. 


744  CIVIL   REMEDIES. 

defence  and  a  counterclaim,  and  are  not  twice  pleaded  in  separate 
divisions,  but  are  alleged  only  once  with  a  proper  demand  for 
relief  as  in  a  counterclaim,  the  defect,  if  any,  can  only  be  reached 
by  motion.  If  not  so  remedied,  the  defendant  may  at  the  trial 
rely  upon  the  answer  in  both  of  its  aspects.^ 

SECTION    SIXTH. 

COUNTERCLAIM,  SET-OFF,   CROSS-COMPLAINT,  AND  CROSS- 
DEMAND. 

§  726.  A  reference  to  the  statutorj^  provisions  collected  at  the 
commencement  of  section  first  of  this  chapter  shows  that  some 
important  differences  exist  among  the  various  codes  in  respect  to 
the  matters  stated  in  the  above  title.  Most  of  the  codes  may  be 
separated  into  two  groups,  each  following  a  certain  well-defined 
type.  The  first  group  contains  those  which  provide  for  a 
"  counterclaim  "  and  for  no  other  sort  of  cross-demand,  and 
which  adopt  the  following  formula  in  defining  it :  "  The  counter- 
claim must  be  one  existing  in  favor  of  a  defendant  and  against  a 
plaintiff  between  whom  a  several  judgment  might  be  had  in  the 
action,  and  arising  out  of  one  of  the  following  causes  of  action : 
1.  A  cause  of  action  arising  out  of  the  contract  or  transaction  set 
forth  in  the  complaint  [petition]  as  the  foundation  of  the  plain- 
tiff's claim,  or  connected  with  the  subject  of  the  action  :  2.  In  an 
action  arising  on  contract,  any  other  cause  of  action  arising  also 
on  contract,  and  existing  at  the  commencement  of  the  action." 
The  second  group  embraces  those  in  which  the  "  countejclaim  " 
is  sul)stantially  identical  with  the  first  subdivision  of  the  section 
just  quoted,  and  in  which  a  "set-off"  is  also  defined  in  substan- 
tial agreement  with  the  second  subdivision.  The  following  are 
the  formulas  adopted  in  this  group  :  "  The  counterclaim  must  be 
one  existing  in  favor  of  a  defendant  and  against  a  plaintiff  be- 
tween whom  a  several  judgment  might  be  had  in  the  action,  and 
arising  out  of  the  contract  or  transaction  set  forth  in  the  com- 
plaint [petition]  as  the  foundation  of  the  plaintiff's,  claim,  or 
connected  with  the  subject  of  the  action."     "  A  set-off  can  only 

1  Lancaster,  &c.  Man.  Co.  v.  Colgate,  if  it  purports  to  be  a  counterclaim,  and 

12    Oliio   St.    344  ;     but,   per   contra,   see  sets  up  a  cause  of  action,  and  praj-s  for 

Campbell  v.  Routt,  42  Ind.  410, 415,  wliicli  relief,  tlie  defendant  cannot  treat  it  as  a 

holds  tiiat  the  same  jjleading  cannot  be  defence  in  bar  merely, 
both  a  "defence  "and  a  counterclaim: 


COUNTERCLAIM.  745 

be  pleaded  in  actions  founded  on  contract,  and  must  be  a  cause 
of  action  arising  upon  contract,  or  ascertained  by  a  decision  of 
the  court."  The  codes  of  Indiana  and  of  Iowa  cannot  be 
referred  to  either  of  these  two  general  groups :  their  provisions 
are  quite  different  in  language  from  the  common  type,  and  much 
broader  in  meaning.  They  will  be  found  quoted  at  large  in 
section  first  of  this  chapter.^  In  several  of  the  States  a  special 
provision  is  made  for  the  introduction  of  new  parties  made  neces- 
sary by  the  pleading  of  a  "  counterclaim  "  or  set-off."  ^  The 
counterclaim  in  the  ordinary  form  must  be  in  favor  of  a  defend- 
ant and  against  a  plaintiff  between  whom  a  several  judgment  on 
'the  action  is  possible.  This  requirement,  as  will  be  seen  in  the 
sequel,  may  sometimes  fail  of  working  complete  justice  between 
the  parties.  Thus,  for  example,  when  a  surety  is  sued,  and  a 
cross-demand  against  the  plaintiff  exists  in  favor  of  the  principal 
debtor,  the  surety  cannot  interpose  this  claim  because  it  is  not  in 
his  own  favor.  To  obviate  this  and  similar  difficulties,  the  codes 
of  Indiana  and  of  Iowa  have  added  special  provisions  covering 
the  class  of  cases  described,  and  authorizing  one  defendant, 
under  certain  specified  circumstances,  to  avail  himself  of  a 
counterclaim  or  set-off  existing  in  favor  of  a  codefendant, 
when  the  liability  of  both  to  the  plaintiff  is  joint,  or  one  is  a 
surety  for  the  other.^  From  a  comparison  of  the  various 
clauses  above,  quoted  or  referred  to,  it  is  plain  that  the  judicial 
decisions  giving  a  construction  to  the  sections  of  the  codes 
embraced  in  the  first  and  second  groups  can  all  be  used  in 
constructing  the  full  theory  of  the  "  counterclaim  "  which  forms 
so  marked  and  important  an  element  in  the  new  procedure.  In 
all  these  States,  the  "  counterclaim  "  singly,  or  the  "  counter- 
claim "  and  "set-off"  taken  together,  are  not  only  the  same  in 
substance,  but  are  defined  in  almost  exactly  the  same  language, 
so  that  the  interpretation  given  by  the  courts  of  one  State  can 
aid  in  determining  the  questions  which  may  arise  in  another. 
The  decisions  made  in  Indiana  and  Iowa,  however,  must  to  a 
certain  extent  stand  by  themselves ;  for  they  are  based  upon 
statutes  which  are  in  many  respects  special  in  their  terms,  and 
different  in  their  meaning. 

1  See  supra,  §§  583,  584.  these  sections  of  the  statutes  are  given  in 

2  Ohio,  §§  96,  98 ;  Kansas,  §§  97,  99  ;     full. 

Nebraska,  §§  103,  105;   Indiana,  §63;         3  Indiana,  §  58;   Iowa,  §  2661.     See 
Iowa,  §  2662.    See  supra,  §  584  (n.),  where    supra,  §  584  (n.),  for  these  sections  in  full. 


746  CIVIL    REMEDIES. 

§  727.  The  subject-matter  of  this  section  will  be  arranged  in 
the  following  order,  and  distributed  into  the  following  sub- 
divisions :  I.  A  general  description  of  the  "  counterclaim,"  its 
nature,  objects,  and  uses.  II.  The  parties  in  their  relations 
with  the  counterclaim ;  including  the  requirements  that  the 
demand  must  be,  1.  In  favor  of  the  defendant  who  pleads  it ;  and, 
2.  Against  the  plaintiff ;  and,  3.  When  it  may  be  set  up  in  favor 
of  one  or  some  of  several  defendants,  or  against  one  or  some  of 
several  plaintiffs ;  that  is,  when  a  several  judgment  may  be  had 
in  the  action  between  such  defendant  and  plaintiff.  III.  The 
subject-matter  of  the  counterclaim,  or,  in  other  words,  the  nature 
of  the  causes  of  action  which  may  be  pleaded  as  counterclaims. 
This  most  important  subdivision  will  include  several  heads :  viz., 
1.  Whether  a  counterclaim  must  be  a  legal  claim  for  damages, 
—  like  the  set-off  or  the  recoupment  of  the  former  system,  —  or 
whether  it  may  be  for  equitable  or  other  special  relief ;  2.  When 
the  counterclaim  is,  or  is  alleged  to  be,  a  cause  of  action  arising 
out  of  the  cotitract  set  forth  in  the  complaint  or  petition  as  the 
foundation  of  the  plaintiff's  claim  ;  3.  When  it  is,  or  is  alleged  to 
be,  a  cause  of  action  arising  out  of  the  transaction  set  forth  in 
the  complaint  or  petition  as  the  foundation  of  the  plaintiff's 
claim ;  4.  When  it  is,  or  is  alleged  to  be,  a  cause  of  action  con- 
nected ivith  the  subject  of  the  action.  The  discussion  of  these 
topics  will  require  the  special  examination  and  interpretation  of 
certain  phrases  and  clauses  of  tlie  statute,  upon  the  true  meaning 
of  which  they  all  to  a  great  extent  depend :  namely,  («)  the 
interpretation  of  "  the  foundation  of  the  plaintiff's  claim,"  or 
when  is  a  contract  or  transaction  "  the  foundation  of  the  plain- 
tiff's  claim  "?  (5)  interpretation  of  "arising  out  of,"  or  when 
does  a  cause  of  action  "arise  out  of"  a  contract  or  transac- 
tion ?  (e)  interpretation  of  "transaction,"  (cZ)  and  of  "subject 
of  the  action  ; "  (e)  and  of  "  connected  with  the  subject  of  the 
action,"  or  when  is  a  cause  of  action  "  connected  with  the  sub- 
ject of  the  action"?  Resuming  the  statement  of  subordinate 
heads  :  5.  In  actions  founded  on  contract,  a  counterclaim  founded 
on  another  contract,  which  embraces  in  particular  (a)  the 
power  of  electing  between  actions  in  form  founded  on  contract 
and  those  in  form  founded  on  tort  ;  and  (6)  the  requirement  that 
the  cause  of  action  must  exist  at  the  time  when  the  suit  was 
commenced.     IV.  Set-off  as  defined   in   several   of  the    codes. 


SET-OFF.  747 

V.  Certain  miscellaneous  rules  applicable  to  all  counterclaims 
and  set-offs.  VI.  The  special  provisions  found  in  the  codes  of 
certain  States,  and  especially  in  those  of  Indiana  and  of  Iowa. 
VII.  The  reply.  This  arrangement,  although  perhaps  not 
strictly  scientific,  is  in  exact  conformity  with  the  order  pursued 
by  the  statute,  and  is,  therefore,  the  one  best  adapted  for  our 
present  purpose.  A  full  discussion  of  all  the  topics  mentioned 
will  certainly  cover  the  whole  ground,  and  will  develop  the  com- 
plete theory  of  the  "  counterclaim  "  as  it  appears  in  the  codes. 

§  728.  It  will  materially  aid  in  determining  the  exact  province 
and  scope  of  the  counterclaim  if  we  compare  it  with  the  cross- 
demands  in  legal  actions  permitted  by  the  former  system  of 
procedure.  I  shall  therefore,  by  way  of  preface,  and  without 
going  into  unnecessary  details,  state  the  fundamental  principles 
upon  which  those  cross-demands  were  based,  and  the  general 
rules  which  governed  their  use. 

§  729.  The  Cross-Demands  alloived  hy  the  former  Procedure. 
The  cross-demands  in  legal  actions  allowed  by  the  former  pro- 
cedure were  "set-off"  and  "recoupment  of  damages."  Origi- 
nally the  common  law  acknowledged  no  such  defence  or  proceed- 
ing on  the  part  of  a  defendant :  the  primitive  notion  of  an  action 
did  not  admit  the  possibility  of  a  defendant  being  an  actor  and 
interposing  a  claim  against  the  plaintiff  to  be  tried  in  the  one 
suit.  The  legislature  effected  the  change,  and  invented  the 
"  set-off."  Being  entirely  of  statutory  origin,  the  "  set-off," 
when  used  in  actions  at  law,  was  necessarily  kept  within  the 
limits  prescribed  by  the  terms  of  the  enactment,  and  was  not 
extended  beyond  their  fair  import.  The  court  of  chancery,  not 
acting  directly  in  pursuance  of  this  legislation,  but  being  guided 
rather  by  its  analogies,  was  never  restricted  to  its  exact  provi- 
sions, and  created  an  "  equitable  set-off"  broader  and  more  com- 
prehensive than  that  administered  by  the  courts  of  law.  The 
original  English  statute  permitted  a  set-off  only  in  the  case  of 
mutual  "  debts."  As  this  word  had  a  well-known  technical 
meaning  in  the  legal  procedure,  it  served  to  restrict  the  use  of 
the  set-off  to  the  single  class  of  demands  which  were  at  the 
common  law  described  by  the  term  "  debt ;  "  namely,  those  which 
arise  from  contract,  and  are  fixed  and  certain  in  their  amount. 
There  could  not,  therefore,  be  a  set-off  of  general  "  damages  " 
resulting  from  the  breach  of  contracts,  but  only  of  those  claims, 


748 


CIVIL   REMEDIES. 


the  amount  of  which  had  been  ascertained  and  settled  by  the 
promise  itself,  so  that  there  could  be  no  discietion  in  the  jury, 
and  no  "  assessment  "  by  them.  This  original  notion  oi  the  set- 
off was  generally  perpetuated  in  the  legislation  of  the  various 
States  prior  to  the  Codes  of  Procedure  ;  although  in  some  its 
scope  had  been  enlarged,  and  made  to  embrace  any  pecuniary 
demand  arising  from  contract,  whether  "  debt  "  or  "  damages." 
Where  the  original  notion  was  preserved,  the  exact  language  of 
the  English  statute  was  not  always  retained  ;  but  its  force  and 
effect  were  not  materially  changed.  I  have  given  in  the  note  an 
abstract  of  the  New  York  statute  as  an  example  of  the  legisla- 
tion, since  it  does  not  substantially  differ  from  that  of  other 
States.^ 


1  2R.  S.,  p.  354,.  §  18,  p.  355,  §§  21, 
22;  2  Edm.  Stat,  at  Large,  p.  365,  §  18, 
p.  367,  §§  21,  22.  The  defendant  may 
set  off  demands  which  he  has  against  tlie 
plaintiff  ill  the  following  cases  :  1.  Itmust 
arise  upon  a  judgment  or  upon  a  contract, 
exp'-ess  or  implied,  sealed  or  unsealed. 
2.  It  must  be  due  to  the  defendant  in  his 
own  right,  as  being  the  original  creditor, 
or  as  being  the  assignee  and  owner.  3.  It 
must  be  for  the  price  of  real  estate  or 
personal  property  sold,  or  for  money 
paid,  or  for  services  done  ;  or,  if  not  one 
of  these,  the  amount  must  be  liquidated, 
or  be  capable  of  being  ascertained  by 
compuiation.  4.  It  must  have  existed 
at  the  time  of  the  commencement  of 
the  suit,  and  must  then  have  belonged 
to  the  defendant.  5.  The  action  itself 
must  be  founded  upon  a  similar  demand 
which  could  itself  be  a  set-off.  6.  If  there 
are  several  defendants,  the  demand  must 
be  due  to  them  jointly.  7.  It  must  l)e  a 
demand  existing  against  the  plaintiff  in 
the  action,  unless  the  suit  be  brought  in 
the  name  of  a  plaintiff  who  has  no  real 
interest  in  the  contract  upon  which  the 
suit  is  founded ;  in  which  case  no  set-off 
of  a  demand  against  the  plaintiff  shall  be 
allowed,  unless  as  hereinafter  specified. 
It  will  be  remembered,  that,  when  this 
statute  was  passed,  things  in  action  were 
not  generally  assignable,  so  that  an  action 
could  be  maintained  by  tiie  assignee  as 
plaintiff:  if  actually  transferred,  the  ac- 
tion was  brought  in  the  name  of  the 
assignor  as  nominal  plaintiff;  while  the 


real  owner  —  the  assignee  —  was  not  a 
party  to  the  record.  But  full  transfers 
were  permitted  in  the  case  of  negotiable 
paper:  the  succeeding  subdivisions  pro- 
vide for  tiie  special  circumstances  arising 
when  there  has  been  an  assignment. 
8.  In  an  action  on  a  contract  not  negoti- 
able, which  has  been  assigned  by  the 
plaintiff  [the  plaintiff  therefore,  being  a 
nominal  party,  and  having  no  real  inter- 
est], a  demand  existing  against  such 
plaintiff,  or  against  the  assignee,  at  the 
time  of  the  assignment,  and  belonging  to 
the  defendant  before  notice  of  the  assign- 
ment, may  be  set  off  to  the  amount  of  the 
plaintiff's  demand  [that  is,  the  demand 
sued  upon].  9.  If  the  action  is  on  negoti- 
able paper,  assigned  to  the  plaintiff  after 
it  became  due,  the  defendant's  demand 
against  the  assignor  thereof  may  be  set 
off  to  the  amount  of  the  claim  in  suit. 
10.  If  the  plaintiff  is  a  trustee,  or  if  he  has 
no  real  interest  in  the  suit,  the  defendant's 
demand  against  the  person  beneficially 
interested  may  be  set  off  to  the  amount  of 
the  claim  in  suit.  In  all  of  these  latter 
cases,  the  defendant's  demand,  in  order  to 
be  a  set-off,  must  fall  within  the  descrip- 
tion given  in  the  former  subdivisions.  If 
the  amount  of  the  set  off  as  established 
equals  the  plaintiff's  demand,  the  judg- 
ment shall  be  rendered  that  the  plaintiff 
take  nothing  by  his  action ;  if  it  be  less, 
the  plaintiff  siiall  have  judgment  for  the 
residue  only.  If  there  be  f(jund  a  balance 
due  to  the  defendant,  judgment  shall  be 
rendered     for     the    defendant     for     the 


EECOUPMENT   OP   DAMAGES.  749 

§  730.  It  is  not  necessary  to  discuss  this  statute,  nor  to  cite 
cases  illustrating  its  meaning.  It  has  been  displaced  b}^  the  more 
comprehensive  provisions  of  the  code.  It  is  clear  that  if  the 
plaintiff's  action  was  on  a  contract  and  for  a  "  debt,"  —  for  the 
more  extended  language  of  the  statute  describes  only  a  "  debt," 
—  and  the  defendant  held  another  "  debt "  due  from  the  plaintiff 
personally,  and  existing  in  his  own  favor,  and  which  did  so  exist  at 
the  commencement  of  the  action,  he  could  plead  such  demand  as 
a  set-off  ;  and  if  it  exceeded  the  amount  of  the  plaintiff 's  claim,  he 
could  have  judgment  against  the  plaintiff  for  the  surplus.  Also 
in  an  action  for  the  same  kind  of  demand,  brought  by  a  plaintiff 
who  had  really  assigned  the  claim,  and  was  therefore  a  nominal 
party  only,  or  brought  by  a  plaintiff  who  was  a  trustee,  or  sued 
on  behalf  of  another  person,  or  brought  by  an  assignee  of  nego- 
tiable paper  transferred  after  it  became  due,  the  defendant  might 
set  off  a  similar  kind  of  demand  which  he  had  against  either  the 
assignor  or  the  assignee  in  the  first  case  before  notice  of  the  assign- 
ment, or  against  the  beneficiary  in  the  second  case,  or  against  the 
assignor  in  the  third  case  ;  but  he  could  not  by  such  set-off  do 
more  than  defeat  the  plaintiff's  recovery:  he  could  not  have  a 
judgment  for  any  balance  due  to  himself.  The  reason  for  this 
latter  rule  is  very  plain  ;  for  in  neither  of  these  cases  was  the 
plaintiff  the  real  party  in  interest  a7id  the  debtor  at  the  same  time. 

§  731.  While  set-off  was  entirely  of  statutory  origin,  the  doctrine 
and  practice  of  "  recoupment  of  damages  "  had  their  inception 
in  the  law  of  judicial  decision.  From  the  notion  of  absolute  non- 
performance as  a  total  defence,  the  progress  was  easy  and  natural, 
through  the  partial  defences  of  a  part  performance  and  a  reduc- 
tion of  damages  by  means  of  unskilful  or  negligent  performance, 
to  the  admission  of  a  cross-demand  in  favor  of  the  defendant  for 
damages  resulting  from  the  acts  or  omissions  of  the  plaintiff  that 
amounted  to  a  breach  of  the  contract  sued  upon.  In  this  manner 
the  doctrine  of  recoupment  took  its  rise,  and  it  was  developed 
by  decision  after  decision  uiitil  it  became  established  in  the  courts 
of  England  and  of  the  American  States,  —  a  defence  as  well 
known  and  as  widely  admitted  within  its  scope  as  the  statutory 

amount  thereof;     except   that  no   such  signed  before  the  commencement  of  the 

judgment  shall  be  rendered   against  the  suit,  nor  when  tlie  balance  is  due  from 

plaintiff  when   tlie  contract  upon  which  any  other  person  than  the  plaintiff  in  the 

the  suit  is  founded  shall  liave  been  as-  action. 


750  CIVIL   REMEDIES. 

set-off.  There  were  resemblances  and  dissimilarities  between 
these  two  defences.  Both  were  confined  to  actions  upon  contract, 
and  must  themselves  arise  from  contract ;  but  here  the  resemblance 
ends.  A  set-off  must  be  for  a  debt,  a  fixed  certain  sum,  at  least 
capable  of  being  ascertained  by  computation  :  recoupment  was 
of  damages,  often  entirely  unliquidated,  and  depending  upon  an 
assessment  by  a  jury.  A  set-off  was  necessarily  a  demand  arising 
upon  a  different  contract  from  the  one  in  suit :  recoupment  was 
necessarily  of  damages  resulting  from  a  breach  of  the  very  same 
contract  sued  upon.  In  set-off  the  defendant  might  sometimes 
recover  a  balance  from  the  plaintiff:  in  recoupment  this  could 
never  be  done.  The  doctrine  may  be  summarily  stated.  In  an 
action  upon  a  contract  to  recover  either  liquidated  or  unliqui- 
dated damages  or  a  debt,  the  defendant  might  set  up  by  way  of 
defence  and  recoup  the  damages  suffered  by  himself  from  any 
breach  by  the  plaintiff  of  the  same  contract.  At  an  early  period 
it  was  supposed  that  only  damages  arising  from  the  plaintiff's 
fraud  in  inducing  the  defendant  to  enter  into  the  contract,  or  in 
executing  the  same,  could  be  recouped  ;  but  it  was  subsequently 
settled  that  fraud  was  not  a  necessary  element,  and  that  any 
breach  by  the  plaintiff  of  the  same  contract  which  he  makes  the 
basis  of  Ms  action  would  admit  the  defence  of  recoupment.  The 
rule  was  stated  in  the  following  manner  in  a  case  which  arose  a 
short  time  before  the  new  system  of  procedure  was  adojjted  : 
"  It  cannot  be  denied,  consistently  with  the  doctrine  now  well 
established,  but  that,  in  an  action  for  a  breach  of  contract,  the 
defendant  may  show  that  the  plaintiff  has  not  performed  the 
same  contract  on  his  part,  and  may  recoup  his  damages  for  such 
breach  in  the  same  action,  whether  they  were  liquidated  or  not, 
or  may  at  his  election  bring  a  separate  action."  ^  Recoupment 
was,  however,  used  solely  as  a  defence  :  it  could  do  no  more 
than  defeat  the  plaintiff's  recovery  ;  even  though  the  defendant's 
damages  should  exceed  those  proved  by  the  plaintiff,  he  could 
have  no  judgment  for  the  surplus.^ 

§  732.  The  nature,  scope,  and  intent  of  the  doctrine  may  be 
illustrated  by  a  statement  of  some  familiar  instances  in  which 
recoupment  was  used  ;  and  it  will  be  readily  seen  in  all  of  them 

1  Mayor  v.  Mabie,  13  N.  Y.  151,  153,  Peirce,  3  Hill,  171  ;  Murden  v.  Priment, 
per  Denio    J. ;    and    see    BaUerraan   v.     1  Hilt.  75. 

^  Sickels  V.  Pattison,  14  Wend.  257. 


RECOUPMENT    OF    DAMAGES.  751 

that  the  defendant's  demand  was  based  npon  a  breach  of  the  con- 
tract which  Avas  the  foundation  of  the  action,  although  often  of 
other  stipulations  or  covenants  in  that  agreement  than  the  one 
which  it  was  alleged  he  himself  had  broken.  Thus,  in  an  action 
brought  to  recover  the  price  of  land,  the  defendant  could  recoup 
the  damages  arising  from  the  plaintiff  's  fraudulent  representa- 
tions concerning  the  land  by  which  he  had  been  induced  to  enter 
into  the  contract  ;i  and  in  an  action  for  the  price  of  goods  sold, 
damages  resulting  from  the  j)laintiff 's  breach  of  a  warranty  on  the 
sale  ;  ^  and  in  an  action  for  services,  damages  from  the  negligent 
or  unskilful  manner  of  their  performance  ;  ^  and  in  an  action  on 
a  lease  for  rent  or  use  and  occupation,  damages  from  the  plain- 
tiff's breach  of  a  covenant  to  repair,  or  covenant  for  quiet  en- 
joyment;  ^  or  damages  from  the  plaintiff's  fraud  in  inducing 
defendant  to  enter  into  the  lease.^  But  recoupment  is  confined 
to  damages  from  a  breach  of  the  contract  sued  on.^  The  same 
doctrine,  which  has  thus  far  been  illustrated  exclusively  from 
New  York  cases,  prevailed  in  the  other  States  to  the  same  extent, 
and  perhaps,  in  some  of  them,  had  even  a  wider  application.  A 
very  few  examples  will  suffice.  In  an  action  upon  a  promissory 
note,  the  answer  alleging  that  the  note  was  given  by  the  defend- 
ant for  the  price  of  the  plaintiff's  services  in  constructing  and 
mounting  a  water-Avheel,  and  that  the  work  was  done  and  the 
wheel  made  and  mounted  in  a  very  negligent  and  unskilful  man- 
ner, to  the  defendant's  damage,  was  held  to  state  a  proper  case 
for  a  recoupment  of  defendant's  damages  ;  *"  and  in  an  action 
upon  a  sealed  agreement  to  recover  an  amount  due  for  certain 
sawing  done  by  the  plaintiff  in  pursuance  thereof,  and  also  dam- 
ages from  the  defendant's  failure  to  furnish  the  stipulated  num- 
ber of  logs  to  be  sawed,  damages  arising  from  the  plaintiff's 
breach  of  other  covenants  were  recouped  ;  ^  and  damages  from 
the  j)laintiff 's  failure  to  build  according  to  the  specifications  were 
permitted  to  be  recouped  in  an  action  for  the  price.^   In  Indiana, 

1  Van  Epps  v.  Harrison,  5  Hill,  63.  5  Allaire    v.    Whitney,    1    Hill,   484  ; 

2  Eeab  v.  McAlister,  8  Wend.  109.  Whitney  v.  Allaire,  1  N.  Y.  305;  4  Denio, 

3  Blanchard  v.  Ely,    21    Wend.    342;     554. 

Sickels  V.  Pattison,  14  Wend.  257  ;  Still  <>  Seymour  v.   Davis,  2    Sandf.    239 ; 

V.  Hall,  20  Wend.  51;  Ives  v.  Van  Epps,  Deming  t-.  Kemp,  4  Sandf.  147;  Terrell 

22  Wend.  155.  v.  Walker,  66  N.  C.  244,  251. 

4  Whitbeck   v.    Skinner,    7    Hill,    53;  7  Butler  r.  Titus,  13  Wise.  429. 
Dorwin  v.  Potter,  5  Denio,   306;  Mayor          ^  Morrison  v.  Lovejoy,  6  Minn.  319. 
V.  Mabie,  13  N.  Y.  151.                                         «  Mason  v.  Heyward,  3  Minn.  182. 


752  CIVIL   REMEDIES. 

where  the  defendant  had  given  a  note  for  the  purchase-price  of 
hmd  sold  him  by  the  payee,  and  the  kxtter  had  afterwards  wrong- 
fully entered  upon  tlie  land  and  taken  and  converted  the  grow- 
ing crops,  it  was  held  in  an  action  upon  the  note  that  the  damages 
resulting  from  these  wrongful  acts  of  the  plaintiff  could  not  be 
recouped,  since  they  were  indej)endent  trespasses,  and  not 
breaches  of  the  contract.^  The  doctrine  was  applied  in  Mis- 
souri to  the  following  facts  :  The  action  was  brought  to  recover 
rent  of  a  farm  leased  to  defendant  by  a  verbal  agreement :  the 
answer  set  up,  that,  by  further  provisions  of  the  same  contract, 
the  plaintiff  stipulated  to  build  and  maintain  a  fence  between  the 
premises  leased  and  other  land  occuj)ied  by  himself;  that  he  neg- 
lected to  build  the  fence,  and,  by  reason  of  his  neglect,  his  cattle 
came  upon  defendant's  farm,  and  destroyed  crops  thereon.  The 
damages  thus  sustained  were  held  to  be  the  proper  subject  of 
recoupment.^ 

§  733.  Another  species  of  defence,  which  existed  at  the  com- 
mon law  and  still  exists,  is  sometimes  confounded  with  recoup- 
m-ent  or  with  counterclaim,  although  it  bears  no  real  resemblance 
to  either,  and  should  be  carefully  distinguished  from  both ; 
namely,  the  reduction  of  the  amount  claimed  to  be  due  in  suits 
for  the  price  of  goods  sold  or  of  services  rendered  in  most  instances 
when  the  action  is  on  a  quantum  meruit  or  quantum  valebant.  In 
set-off  and  in  recoupment,  the  essence  of  the  defence  consists  in 
a  cause  of  action  against  the  plaintiff  or  some  other  person  : 
whether  a  judgment  is  recovered  or  not  is  immaterial,  but  a  right 
of  action  always  lies  at  the  bottom  of  the  legal  notion.  In  the 
defence  referred  to,  there  is  no  such  right :  it  is  simply  a  process 
of  subtracting  from  the  amount  of  the  adverse  claim,  and  there- 
fore operates  directly  upon  that  demand.  Set-off  and  recoup- 
ment, on  the  other  hand,  do  not  attack  the  adverse  claim  itself ; 
and  for  that  reason  it  is  often  said  that  they  are  not  true  defences  : 
they  admit  the  plaintiff's  cause  of  action,  and  set  up  an  affirma- 
tive cross-demand,  so  that  the  sums  awarded  for  each  may  satisfj'- 
one  another,  leaving  only  a  surplus  to  be  received  by  the  party 
who  obtains  the  larger  amount.  The  distinction  is  very  plain  ; 
but  it  has  sometimes  been  overlooked.  One  example  will  be  a 
sufficient  illustration.     In  an  action  for  the  price  of  goods  sold 

1  Slayback  v.  Jones,  9  Ind.  470.  2  Hay  i-.  Sliort,  49  Mo.  139,  142. 


COUNTERCLAIM.  753 

and  delivered,  and  of  work  and  labor  done  amounting  as  alleged 
to  $197,  the  answer  set  np  that  the  goods  furnished  and  the  work 
done  were  worth  no  more  than  $173,  and  as  to  that  sura  averred 
payment.  On  the  trial,  the  defendant  offered  evidence  tending 
to  show  that  the  articles  were  to  be  of  a  certain  kind  and  quality ; 
that  they  were,  on  the  contrary,  very  inferior  in  qoality  ;  and  the 
consequent  diminution  in  value  and  price.  This  evidence  was 
rejected  on  the  ground  that  the  reduction  sought  could  only  be 
claimed  by  way  of  "recoupment  of  damages  or  of  set-off."  The 
New  York  Court  of  Appeals,  reversing  this  ruling,  pronounced 
the  defence  admissible,  since  it  was  in  no  sense  a  claim  for  dam- 
ages against  the  plaintiff,  but  simply  a  diminution  of  the  value  of 
the  goods  and  the  labor,  as  that  had  been  established  prima  facie 
by  the  plaintiff.^  The  same  principle  applies  through  the  whole 
range  of  possible  defences,  under  whatever  forms  they  may  be 
set  up  :  if  they  simply  attack  the  cause  of  action,  and  show  that 
hy  virtue  thereof  the  plaintiff  ought  not  to  recover  at  all,  or 
recover  all  that  he  demands,  they  are  not,  and  cannot  be,  answers 
in  the  nature  of  "set-off"  or  "recoupment"  under  the  old  sys- 
tem, or  of  "  counterclaim  "  or  "  cross-demand  "  under  the  new. 
Thus  the  defence  of  payment  cannot,  by  any  mode  of  aver- 
ment, be  made  a  (iounterclaim  ;  ^  nor  that  of  usury .^  And  gener- 
ally, whenever  the  facts  pleaded  are  merely  in  bar  of  the  action, 
and  the  relief  demanded  by  the  defendant  is  only  what  would 
be  the  legal  judgment  in  his  favor  upon  those  facts,  the  answer 
is  not  a  counterclaim,  nor,  a  fortiori,  a  cross-complaint,  although 
it  may  be  in  the  form  of  the  latter  species  of  pleading.'*  From 
this  preliminary  statement  of  the  former  defences  which  contained 
some  of  the  elements  that  are  found  in  the  modern  counterclaim, 
and  of  others  which  have  nothing  in  common  with,  but  are 
sometimes  mistaken  for,  the  counterclaim,  I  now  proceed  to  a 
direct  discussion  of  the  latter  as  it  is  defined  and  authorized  by 
the  codes,  and  shall  follow  the  order  of  treatment  already 
indicated. 

1  Moffet  V.  Sackett,  18  N.  Y.  522.  *  Bledsoe  v.  Rader,  30  Ind.  Z'A  ;  Bel- 

^  Burke  i\  Tliorne,  44  Barb.  363.  leau  v.  Thompson,  33  Cal.  495. 

»  Prouty  V.  Eaton,  41  Barb.  409,  412, 
per  T.  A.  Johnson  J. 

48 


754  CIVIL   REMEDIES. 


I.  A  Creneral  Description  of  the  Counterclaim  ;  its  Nature^  Ob- 
jects^ and  Uses. 

§  734.  Under  this  subdivision  I  shall  collect  from  leading  judi- 
cial decisions  such  opinions,  and  portions  of  opinions,  as  have  in 
the  clearest  and.  most  accurate  manner  described  the  general 
nature,  objects,  and  uses  of  the  counterclaim,  and  shall  add  the 
comments  and.  explanations  that  seem  necessary  to  a  full  develop- 
ment of  the  subject.  The  discussion  is  here  confined  to  the 
general  properties  of  the  counterclaim,  and  does  not  descend  to 
its  various  special  elements  and  features,  which,  depending  upon 
the  particular  terms  of  the  statutes,  demand  a  more  critical 
examination. 

§  735.  There  are  certain  conclusions  which  are  evident  upon 
the  mere  reading  of  the  statute.  Under  the  former  procedure, 
the  term  "set-off"  included  two  quite  distinct  classes  of  cases: 
namely,  (1)  those  in  which  the  defendant  might  recover  an  affir- 
mative judgment  for  a  "  debt  "  against  the  plaintiff ;  and  (2) 
those  in  which  the  demand  in  his  favor  could  only  be  used 
defensively  to  diminish,  or  perhaps  defeat,  the  recovery  by  the 
plaintiff.  The  codes  provide  for  both  these  classes  "of  cases. 
Those  sections  which  permit  the  action  to  Be  brought  by  an 
assignee  of  a  thing  in  action,  and  allow  under  certain  circum- 
stances the  same  matters  to  be  interposed  as  a  defence  against 
him  which  would  have  been  available  against  the  assignor,  and 
those  sections  which  permit  the  action  to  be  brought  by  a  trustee 
of  an  express  trust,  and  allow  the  same  matters  to  be  set  up  as  a 
defence  against  him  which  would  have  been  available  against  the 
party  beneficially  interested,  —  these  sections  plainly  embrace  the 
second  class  of  "  set-offs  "  above  mentioned ;  namely,  those  in 
which  the  demand  could  be  used  as  a  defence^  but  not  as  the 
basis  of  an  affirmative  recovery  against  the  plaintiff.  On  the 
other  hand,  these  cases  are  not  included  within  the  description 
given  of  a  counterclaim.  A  defence,  even  though  it  consists  of 
a  claim  for  relief  against  some  person,  but  does  not  permit  a  recov- 
ery against  the  plaintiff,  is  not  a  counterclaim.  The  first  class  of 
"  set-offs  "  above  mentioned  is  embraced  within  the  definition  of 
the  counterclaim  as  given  by  those  codes  which  constitute  the 
first  group  according  to  the  division  made  in  a  former  paragraph. 


COUNTERCLAIM.  755 

In  the  codes  which  constitute  the  second  group,  the  same  chiss 
of  "  set-offs  "  is  substantially  described  under  the  original  name 
which  belonged  to  that  species  of  answer  in  the  old  procedure. 

§  736.  The  "  recoupment  of  damages  "  has  undergone  a  most 
important  modification.  It  is  confessedly  covered  by  the  defini- 
tion of  counterclaim  given  in  all  the  codes  without  exception. 
In  those  forming  the  two  principal  groups  according  to  the  clas- 
sification heretofore  made,  it  is  described  by  the  express  language, 
"  a  cause  of  action  arising  out  of  the  contract  set  forth  in  the 
complaint  [or  petition]  as  the  foundation  of  the  plaintiff's 
claim  ;  "  in  that  of  Indiana  it  is  described  by  the  language, 
"  any  matter  arising  out  of  or  connected  with  the  cause  of  action 
which  might  be  the  subject  of  an  action  in  favor  of  the  defend- 
ant, or  which  would  tend  to  reduce  the  plaintiff's  claim  or  demand 
for  damages ;  "  and  in  that  of  Iowa  by  the  language,  "  a  cause 
of  action  in  favor  of  the  defendants,  or  some  of  them,  against  the 
plaintiffs,  or  some  of  them,  arising  out  of  the  contract  set  forth 
in  the  petition."  It  is  be3^ond  dispute,  then,  that  the  recoup- 
ment of  damages,  as  the  same  was  authorized  by  the  courts 
under  the  old  practice,  is  made  a  species  of  counterclaim  by  all 
the  codes.  But  its  effects  have  been  greatly  enlarged.  As  it 
has  been  transferred  into  a  counterclaim,  it  j^artakes  of  all  the 
essential  features  conferred  upon  that  kind  of  defence  by  the 
statute.  For  this  reason,  the  defendant,  who  would  formerly 
have  set  up  the  facts  in  recoupment  of  damages,  and  who  now 
pleads  the  same  facts  as  a  species  of  counterclaim,  may  upon  the 
basis  of  those  facts  obtain  a  judgment  for  damages  in  his  favor 
against  the  plaintiff,  if  the  proofs  upon  the  trial  warrant  such  a 
result. 

§  737.  The  two  classes  of  affirmative  relief  mentioned  in  the 
foregoing  paragraphs,  important  as  they  are,  do  not  exhaust  the 
scope  and  efficacy  of  the  counterclaim.  The  causes  of  action 
w^hich  were  the  basis  of  a  "  recoupment  of  damages  "  or  of  a 
"  set-off,"  as  those  terms  were  legally  defined,  all  necessarily 
arose  from  a  breach  of  contract.  The  language  employed  by  the 
codes  speaks  of  causes  of  action  as  constituting  a  counterclaim, 
which  do  not  arise  out  of  contract.  It  mentions  three  alterna- 
tives, —  causes  of  action  (1)  arising  out  of  the  contract  set  forth 
in  the  complaint,  or  (2)  arising  out  of  the  transaction  set  forth  in 
the  complaint,  or  (3)  connected  ivith  the  subject  of  the  action. 


756  CIVIL   REMEDIES. 

Unless  we  would  accuse  the  legislature  of  the  most  absurd  and 
misleading  tautology,  this  language  was  intended  to  affirm  that 
there  may  be  counterclaims  which  do  not  arise  out  of  contract. 
Arising  out  of  the  "  transaction,"  and  "  connected  with  the  sub- 
ject of  the  action,"  are  placed  in  opposition  to  "  arising  out  of 
contract.''''  As  "recoupment  of  damages"  and  "set-off"  must 
be  based  upon  the  non-performance  of  a  contract,  it  follows  that 
the  counterclaim  was  designed  to  include  other  demands  to 
which  neither  of  these  two  terms  can  apply.  What  are  tliese 
other  demands  ?  I  do  not  now  attempt  to  answer  this  question 
in  detail :  it  is  enough  to  point  out  the  general  nature  of  all  such 
possible  cases.  If  causes  of  action  are  for  the  i-ecovery  of  money 
only,  they  must  either  be  upon  contract  or  for  a  tort.  Is  there 
any  possible  cause  of  action  upon  contract,  which  is  neither  a 
"set-off"  nor  a  "recoupment  of  damages,"  and  which  maybe 
embraced  within  the  definition  of  a  counterclaim  ?  There  is  : 
a  cause  of  action  for  the  breach  of  a  contract  other  than  the  one 
sued  upon,  when  the  demand  is  for  damages  merely,  to  be 
assessed  by  the  jury,  and  not  for  a  debt,  is  neither  a  "  set-off ' ' 
nor  a  "  recoupment,"  and  yet  is  plainly  described  by  the  second 
subdivision  of  the  definition  found  in  all  the  codes  which  form 
the  first  group,  and  by  the  definition  of  "  set-off"  found  in  all 
those  which  make  up  the  second  group.  As  the  word  "  transac- 
tion "  seems  to  imply  causes  of  action  not  necessarily  upon 
contract,  those  arising  from  tort  may  perhaps,  under  j)roper 
circumstances,  be  the  subject  of  counterclaim  ;  but  the  discussion 
of  this  particular  question  will  be  deferred  to  a  subsequent  part  of 
this  section.  I  will  now  sum  up  the  possible  cases,  or  classes 
of  cases,  which  may  be  included  within  the  broad  definition  of 
the  counterclaim  as  given  in  tlie  codes  of  the  first  group :  if  we 
pass  to  the  second  group,  certain  of  these  classes  would  fall  within 
the  term  "set-off"  rather  than  counterclaim.  Of  the  causes  of 
action  which  terminate  in  a  recovery  of  money  alone,  the  coun- 
terclaim expressly  embraces  (1)  the  matters  which  under  the 
former  procedure  gave  rise  to  a  recoupment  of  damages  ;  (2) 
the  cases  of  "  set-off  "  in  which  a  judgment  for  debt  against  the 
plaintiff  was  possible ;  (8)  demands  to  recover  unliquidated 
damages  for  the  breach  of  a  contract  not  the  foundation  of  the 
plaintiff's  suit ;  and  possibly  (4)  demands  to  recover  damages 
for  torts,  if  the  same  arose  out  of  the  "  transaction  "  set  forth  in 


COUNTERCLAIM.  757 

the  complaint  or  petition,  or  are  connected  with  the  su1)ject  of 
the  action.  These  exhaust  all  the  possible  instances  of  a  mere 
jDecuniary  recovery.  Counterclaim  may  also  embrace  cases  of 
an  equitable  nature  in  which  affirmative  relief  is  granted  to 
the  defendant.  Such  cases  are  as  plainly  described  by  the  gen- 
eral language  of  the  codes  as  those  of  a  purely  legal  character 
which  seek  only  a  pecuniary  judgment.  In  order  to  shut  out 
these  claims  for  equitable  relief,  and  to  limit  the  counterclaim  to 
causes  of  action  for  the  recovery  of  money,  the  terms  of  the 
statute  must  be  read  with  restrictions  interpolated  into  their 
midst  which  were  not  placed  there  by  the  legislature.  Were  it 
not  that  the  ancient  set-off-'and  recoupment  could  only  be  used 
in  legal  actions  brought  to  recover  money,  no  judge  would  have 
thought  that  a  like  limitation  must  be  put  upon  the  language  of 
the  codes.  How  far  the  counterclaim  includes  equitable  relief  will 
be  fully  discussed  in  the  sequel.  Finally,  the  only  other  cases 
which  could  possibly  come  within  the  definition  of  counterclaim 
are  legal  causes  of  action  to  recover  possession  of  lands,  or  to 
recover  possession  of  chattels. 

§  738.  Having  thus  enumerated  the  different  kinds  of  causes 
of  action  and  of  relief  which  may  be  used  by  the  defendant  as 
counterclaims,  I  shall  proceed  to  point  out  some  essential  features 
and  elements  which  must  exist  in  each  of  these  cases ;  that  is, 
some  essential  elements  which  enter  into  the  very  notion  of  the 
counterclaim.  (1.)  It  must  be  a  cause  of  action.  In  other 
words,  the  facts  must  be  such  that  they  would  constitute  the 
entire  matter  proper  and  necessary  to  be  set  forth  in  the  com- 
plaint or  petition,  if  the  defendant  had  chosen  to  institute  an 
independent  action  between  himself  as  plaintiff  and  the  plaintiff 
as  defendant.  When  a  counterclaim  is  pleaded,  the  defendant 
becomes,  as  far  as  respects  the  matters  alleged  therein,  an  actor : 
there  are  substantially  two  simultaneous  actions  pending  between 
the  same  parties,  each  of  whom  is  at  the  same  time  a  plain- 
tiff and  a  defendant.  Since  the  counterclaim  states  a  cause  of 
action,  it  is  to  be  governed  and  judged  by  the  rules  which  apply 
to  the  complaint  or  petition :  the  facts  alleged  must  be  sufficient 
to  constitute  the  cause  of  action,  and  the  relief  to  which  the 
defendant  is  entitled  should  be  properly  demanded.  In  short,  the 
pleader  should,  for  the  time  being,  regard  himself  as  acting  for  a 
plaintiff,  and  as  drawing  a  complaint  or  petition.     This  rule  is  so 


758  CIVIL   REMEDIES. 

simple  and  so  plain,  that  it  seems  almost  impossible  to  mistake  it; 
and  yet  the  books  of  reports  are  full  of  cases  in  which  facts  have 
been  set  up  as  counterclaims,  which,  if  admitted  to  be  true,  would 
not  have  entitled  the  party  pleading  them  to  any  relief.  The  test 
thus  suggested  is  of  universal  application.  Would  the  facts 
averred  taken  by  themselves,  if  admitted,  entitle  the  defendant 
to  a  judgment  in  his  favor  against  the  plaintiff?  If  not,  they  do 
not  constitute  a  counterclaim. 

§  739.  It  has  sometimes  been  said  that  "  counterclaim,"  ex  vi 
termini,  implies  a  claim,  and  also  an  opposing  claim ;  and  that, 
therefore,  there  cannot  be  a  valid  counterclaim  unless  there  is  a 
demand  on  behalf  of  the  plaintiff.  This  is  no  doubt  true  within 
certain  limits.  The  counterclaim  as  well  as  the  defence  assumes 
that  the  plaintiff  sets  up  a  claim  in  his  complaint.  There  could  be 
no  answer  of  any  kind,  defensive  or  affirmative,  unless  the  plaintiff 
in  the  first  instance  filed  or  served  a  pleading  containing  some 
demand.  But  a  counterclaim  does  not  necessarily  imply  that  the 
demand  is  a  valid  one.  The  term,  if  not -invented,  was  applied 
by  the  legislature  to  this  species  of  answer,  which  is  allowed  to 
be  used  in  cases  where  the  plaintiff  sets  up  certain  specified 
causes  of  action  ;  but  the  code  nowhere  requires  that  the  cause 
of  action  thus  alleged  should  be  a  good  one.  To  interpolate  any 
such  limitation  into  the  language  of  the  statute  would  be  giving 
an  unnecessary  meaning  to  a  very  simple  epithet  chosen  by  the 
lawmakers  to  designate  a  particular  kind  of  pleading.  The  plain- 
tiff must  file  a  complaint  averring  facts  which  are  said  to  consti- 
tute a  cause  of  action  in  his  favor.  The  defendant  is  expressly 
permitted  to  unite  in  his  answer  as  many  defences  and  counter- 
claims as  he  may  have.  Suppose  that  he  pleads  some  defence 
either  by  way  of  denial  or  of  new  matter,  and  also  a  counter- 
claim. On  the  trial  he  establishes  his  defence,  and  thus  defeats 
the  plaintiff's  recovery  upon  the  alleged  cause  of  action.  Does 
this  success  cut  off  his  power  to  go  on  and  prove  the  facts  con- 
stituting his  counterclaim,  and  to  obtain  the  judgment  thereon  ? 
Sucli  a  conclusion  would  be  a  monstrous  perversion  of  the  statute, 
and  would  be  a  virtual  repeal  of  its  express  provisions  which 
permit  the  defendant  to  unite  as  many  defences  and  counter- 
claims as  he  may  have.  When  the  legislature  authorized  him  to 
join  defences  and  counterclaims  in  this  manner,  it  certainly 
intended  that  lie  should  use  them  all,  and  did  not  mean  that  he 


COUNTERCLAIM.  759 

should  go  tliroLigh  the  empty  form  of  pleading  tliem,  and  after- 
wards abandoning  those  which  are'  affirmative  in  their  nature 
because  successful  in  those  which  are  negative.  This  conclusion 
is  self-evident:  it  necessarily  results  from  the  positive  provisions 
of  the  codes,  and  cannot  be  avoided  without  their  virtual  repeal. 
I  have  dwelt  upon  this  subject  at  some  length,  not  because  there 
can  be  any  legitimate  and  well-founded  doubt  concerning  it,  but 
because  there  are  certain  judicial  dicta  in  a  few  cases  which  are 
supposed  to  convey  a  different  meaning.^ 

§  740.  (2.)  The  cause  of  action  thus  alleged  must  exist  in. 
favor  of  the  defendant  who  pleads  it.  As  the  counterclaim  is 
defined  in  nearly  all  the  codes,  a  defendant  is  not  permitted  to 
set  up  facts  which  entitle  any  other  person,  defendant  or  other- 
wise, to  relief.  He  himself  must  be  the  party  entitled  to  the 
judgment  demanded,  so  that  he  would  be  the  proper  plaintiff,  or 
one  of  the  proper  plaintiffs,  if  the  cause  of  action  had  been  made 
the  basis  of  an  independent  suit.  It  is  not,  of  course,  to  be  un- 
derstood that  a  counterclaim  must  always  exist  in  favor  of  a 
single  defendant:  two  or  more,  when  sued  jointly,  may  have  a 
joint  cause  of  action  against  the  plaintiif;  in  which  case  it  might 
be,  and  properly  should  be,  pleaded  as  a  counterclaim  by  them  all. 
To  the  general  rule  above  stated  there  is  an  exception  already 
pointed  out  in  the  codes  of  Indiana  and  of  Iowa,  which  permits' 
a  surety  when  sued  to  take  advantage  of  a  demand  against  the 
plaintiff  in  favor  of  his  principal,  and  a  joint  debtor,  when  sued, 
to  interpose  one  in  favor  of  another  joint  debtor. 

§  74:1.  (3.)  The  cause  of  action  must  exist  against  the  plaintiff 
in  the  suit,  so  that  a  judgment  for  the  relief  demanded  can  be 
rendered  against  him.  This  feature  of  the  counterclaim  is  evi- 
dent upon  the  most  cursory  reading  of  the  statutory  provision  ; 
and  yet  the  books  are  full  of  cases  in  which  matters  have  been 

1  See  Mayor  v.  J'arker  Vein,  &c.  Co.,  claim  against  liim  in  fjivor  of  tlie  plaintiff 

12  Abb.  Pr.  300  ;  8  Bosw.  300  ;  Bellinger  v.  arising  out  of  the  contract  or  tiie  transac- 

Craigue,  31  Barb.  53i  ;  Prouty  y.  Eaton,  41  tion,  as  the  case  may  require,   which  is 

Barb.  409.     It  is  settled,  however,  in  Min-  tiie  cause  of  action,  or  the  ground  of  the 

nesota,  that  a  counterclaim  must  of  neces-  plaintiff's    claim   set   forth   in   the   com- 

sity  admit  the  cause  of  action  setup  by  the  plaint."     All  claim  of  the  plaintiff  being 

plaintiff,  and  that  the  defendant   cannot  denied,   it   was  held   there  could   be   no 

deny   this   cause   of  action,    and,  at    the  counterclaim.      Steele   v.    Etheridge,    15 

same  time,  plead  a  counterclaim.     In  one  Minn.  501,  509;    Mason  v.   Heyward,   3 

case,  the  court  said:  "The  nature  of  a  Minn.  182;   VVhalon  f.  Aldrich,  8  Minn, 

counterclaim  would  seem  to  render  nee-  346,  348  ,    Koempel  v.   Shaw,   13   Minn, 

essary  the  admission  by  defendant  of  a  488 ;  Morrison  v.  Lovejoy,  6  Minn.  319. 


760  CIVIL   REMEDIES. 

set  up  as  counterclaims  that  showed  no  cause  of  action  whatever 
against  the  phiintiff,  but  one  (if  at  all)  existing  against  some 
other  person  not  a  party  to  the  suit.  This  error  is  most  likely  to 
arise  in  actions  brought  by  an  assignee  of  a  demand,  where  the 
defendant  has  a  claim  which  would  be  valid  aQainst  the  assio-nor. 
Such  claim  may,  under  some  circumstances,  constitute  a  perfect 
defence  to  the  suit,  and  it  may  be  a  set-off  according  to  the  pro- 
visions of  statutes  prior  to  the  code  ;  but  it  cannot  be  a  counter- 
claim, for  the  simple  but  most  cogent  reason  that  it  does  not 
entitle  the  defendant  to  any  possible  recovery  against  the 
plaintiff. 

§  742.  (4.)  In  reference  to  their  subject-matter,  the  codes 
which  form  the  first  group  separate  counterclaims  into  two  gen- 
eral classes  :  namely^  first,  those  which  arise  out  of  a  cause  of 
action  different  from  the  one  alleged  by  the  plaintiff ;  and  see- 
ondly,  those  which  arise  out  of  or  are  connected  with  the  same 
cause  of  action  as  the  one  alleged  by  the  plaintiff.  In  the  first  of 
these  classes  the  cause  of  action  stated  by  the  plaintiff  must 
spring  from  contract,  and  the  counterclaim  must  arise  out  of 
another  contract.  These  counterclaims  are  identical  with  the 
"set-off"  of  the  codes  which  belong  to  the  second  group,  and 
they  embrace,  but  are  not  restricted  to,  the  "  set-offs  "  used  in 
the  former  procedure.  They  include  that  ancient  "  set-off,"  and 
also  much  more  ;  for  they  cover  all  cases  of  damages  as  well  as  of 
deM  resulting  from  the  non-performance  of  contracts  ;  and,  accord- 
ing to  the  construction  supported  by  the  overwhelming  weight  of 
authority,  they  also  extend  to  cases  of  equitable  relief  arising 
from  contract.  In  the  second  of  these  classes  the  cause  of  action 
that  may  be  set  forth  by  the  plaintiff  is  not  defined  or  limited  in 
any  manner,  and  may  therefore,  unless  limitations  not  contained 
in  the  statute  are  to  be  interpolated  b}-  the  courts,  be  of  any  kind 
and  nature.  The  counterclaim,  however,  is  restricted  in  its  scope 
and  character,  and  must  conform  to  one  or  the  other  of  three 
requisites  :  (a)  If  a  contract  is  set  forth  in  the  complaint  or 
petition  as  the  foundation  of  the  plaintiff's  demand,  the  counter- 
claim must  arise  out  of  that  same  contract ;  and  this  plainly  em- 
braces the  ancient  recoupment  of  damages,  although  far  broader 
in  its  operation  than  that  species  of  defence.  (J)  If  a  "  trans- 
action "  is  set  forth  as  the  foundation  of  the  plaintiff's  demand, 
the  counterclaim  must  arise  out  of  that  "  transaction ;  "  and,  so 


COUNTERCLAIM.  761 

far  as  "  transaction  "  is  something  different  from  or  additional  to 
"  contract,"  this  is  a  provision  not  identical  in  its  effect  with 
either  "  set-off"  or  "  recoupment :  "  it  clearly  embraces  many  in- 
stances of  equitable  cross-demand  and  relief  in  favor  of  the 
defendant ;  and  the  only  real  doubt  is,  whether  it  extends  also  to 
legal  causes  of  action,  (c)  Whatever  be  the  nature  of  the  claim 
asserted  by  the  plaintiff",  — for  the  codes  contain  no  restriction  in 
respect  of  this  matter,  —  any  counterclaim  may  be  pleaded 
"  which  is  connected  with  the  subject  of  the  action."  I  have 
thus  given  a  simple  analysis  of  the  statutory  provision,  taking  the 
language  as  the  legislature  has  used  it  without  modification, 
neither  adding  to  nor  subtracting  from  it.  If  the  courts  have  at 
any  time  placed  further  limitations  upon  the  scope  and  operation 
of  the  counterclaim,  if  they  have  ever  refused  to  admit  the  broad 
and  comprehensive  classification  here  made,  they  have  done  so  by 
narrowing  the  general  language  of  the  statute,  and  restricting  its 
obvious  import.  How  far  judicial  decisions  have  gone  in  this 
process  of  limitation,  and  how  much  authority  should  be  con- 
ceded to  their  interpretation,  I  shall  attempt  to  ascertain  and  to 
determine  in  subsequent  portions  of  this  section.  My  sole  object 
now  is  to  let  the  statute  speak  for  itself  by  presenting  an  analysis 
and  arrangement  of  its  various  clauses.  It  is  certain,  from  this 
inspection  of  its  very  language,  that  there  is  no  express  restriction 
upon  the  nature  and  effect  of  the  relief  which  may  be  demanded 
and  obtained  by  means  of  a  counterclaim,  —  no  express  require- 
ment that  it  must  be  legal  rather  than  equitable,  nor  that  it  must 
be  confined  to  a  money  judgment  in  the  form  of  debt  or  damages. 
Nor  is  there  any  express  provision  that  the  counterclaim  must  be 
something  essentially  antagonistic  to,  or  tending  to  defeat  or  lessen, 
the  cause  of  action  set  forth  by  the  plaintiff  in  his  complaint  or 
petition.  It  will  be  seen,  in  the  further  discussions  of  this  sec- 
tion, that  the  incident  last  mentioned  is  declared  by  several  care- 
fully considered  decisions  to  be  a  necessary  element  or  feature  of 
the  counterclaim,  implied  in  its  very  nature  and  in  the  name 
given  to  it  by  the  legislature.  I  do  not  question  the  correctness 
of  this  conclusion :  I  merely  call  attention  to  the  fact,  that,  in 
reaching  it  or  any  similar  result,  the  courts  have  added  to  or 
taken  from  the  express  terms  of  the  codes. 

§  743.  I  shall  now  collect  the  opinions  of  several  eminent  and 
able  judges,  selected  from  a  number  of  leading  cases,  in  order 


762 


CIVIL   REMEDIES. 


that  the  reader  may  be  able  to  compare  their  conclusions  with 
the  results  of  the  foregoing  analysis,  and  to  ascertain  the  general 
principles  upon  which  the  courts  have  proceeded  in  constructing 
the  theory  of  the  counterclaim  as  it  is  now  understood  and 
accepted  in  the  various  States.  These  selections  and  quotations 
will  be  found  in  the  foot-notes.^  The  assignee  of  a  demand  hav- 
ing brought  suit  upon  it,  the  defendant  alleged  as  a  counterclaim 
a  contract  with  the  assignor,  a  breach  thereof  by  him,  and  resulting 
damages,  and  prayed  judgment  for  the  amount  of  such  damages 
against  the  defendant.  No  reply  being  served  to  this  answer, 
the  defendant  urged  that  its  averments  were  admitted,  and  that 
he  was  entitled  to  judgment  on  the  record.  In  rejecting  his 
claim,  the  New  York  Court  of  Appeals  described  the  counterclaim 
at  large,  and  stated  principles  of  universal  application.^ 


'  Leavenworth  v.  Packer,  52  Barb. 
132,  136,  per  Potter  J. :  "A  counterclaim 
is  a  kind  of  equitable  defence  which  is 
permitted,  under  the  provisions  of  the 
code,  to  be  set  up,  when  it  arises  out  of 
the  contract  set  forth  in  the  complaint. 
It  is  broader  and  more  comprehensive 
than  recoupment,  though  it  embraces 
both  recoupment  and  set-ofF;  and  it  is 
intended  to  secure  to  a  defendant  all  the 
relief  which  either  an  action  at  law,  or  a 
bill  in  equity,  or  a  cross-suit,  would  have 
secured  on  the  same  state  of  facts.  But 
it  must  be  something  which  resists  or 
modifies  the  plaintiff's  claim."  See  also 
Clinton  v.  Eddy,  1  Lans.  61,  62  ;  Boston 
Mills  V.  Eull,  6  Abb.  Pr.  n.  s.  319,  321  ; 
Pattison  r.  Richards,  22  Barb.  148,  146 ; 
Ogden  V.  Coddington,  2  E.  D.  Smith,  317  ; 
Gleason  v.  Moen,  2  Duer,  639,  642  ;  Schu- 
bart  V.  Harteau,  34  Barb.  447  ;  Lignot  v. 
Redding,  4  E.  D.  Smith,  285;  Currie  v. 
Cowles,  6  Bosw.  453  ;  Wolf  v.  H.,  13  How. 
Pr.  84  ;  Davidson  v.  Remington,  12  How. 
Pr.  310. 

2  Vassear  v.  Livingston,  13  N.  Y.  248, 
per  Denio  J.  :  "  There  is  nothing  in  tiie 
nature  of  a  counterclaim  stated  in  the  an- 
swer. There  was  never  any  contract  be- 
tween the  plaintiff  and  tiie  defendant ; 
and  although  tlie  new  matter  was,  if  true, 
very  pertinent  to  preclude  the  plaintiff 
from  recovering  upon  the  demand  as- 
signed to  him,  it  had  no  tendency'  to  show 
an  independent  cause  of  action  in  favor 
of  the   defendant   against   the    plaintiff. 


Section  150  of  the  code  defines  a  counter- 
claim. It  must  be  a  claim  existing  in 
favor  of  the  defendant  against  the  plain- 
tiff, arising  either  out  of  the  contract  or 
transaction  sued  upon,  or  some  other  con- 
tract. Here  tlie  defendant  had  no  claim 
against  the  plaintiff.  If  the  facts  were 
truly  stated,  he  had  grounds  for  defend- 
ing himself  against  the  plaintiff's  suit,  but 
none  whatever  for  an  independent  recov- 
ery against  him.  A  counterclaim  must 
contain  the  substance  necessary  to  sus- 
tain an  action  on  behalf  of  the  defendant 
against  the  plaintiff,  if  the  plaintiff  had 
not  sued  the  defendant.  It  is  quite  ob- 
vious that  nothing  of  that  nature  is  stated 
in  this  answer."  In  the  same  case,  the 
court  below,  after  stating  the  doctrine  in 
a  similar  manner,  added:  "A  counter- 
claim which  is  not  also  a  set-off  is  not  a 
defrnce.  It  is  a  distinct  and  independent 
cause  of  action,  which  is  not  used  simply 
to  repel  the  claims  of  the  plaintiff,  but  for 
which  a  judgment  against  him  is  in  all 
events  demanded.  Previous  to  the  code, 
it  could  not  be  set  up  by  the  defendant  at 
all ;  and  the  permission  to  set  it  up  in  an 
answer,  altliough  with  a  change  of  its 
name,  assuredly  has  not  changed  its  legal 
character.  A  recoupment  or  a  set-off  is 
a  defence ;  but  a  defendant  who  avails 
himself  of  such  a  defence  admits,  in  whole 
or  in  part,  the  demand  of  the  plaintiff'  as 
alleged  in  the  complaint."  S.  C.  4  Duer, 
285,  2j3,  per  Duer  J.  See  also  Merrick 
V.  Gordon,  20  N.Y.  93, 97,  per  Comstock  J. 


COUNTERCLAIM.  763 

§  744.  The  doctrine  is  maintained  in  several  cases,  that,  as  an 
essential  feature  or  element  of  every  counterclaim,  the  cause  of 
action  which  it  sets  up  must  be  of  such  a  nature  that  the  relief 
obtained  by  its  means  will  necessarily  interfere  with,  defeat,  lessen, 
or  modify  the  relief  granted  to  the  plaintiff  in  virtue  of  tlie  cause 
of  action  alleged  in  his  complaint  or  petition.  In  other  words, 
the  two  demands  must  be,  to  some  extent  at  least,  antagonistic, 
and  tending  to  destroy  or  limit  each  other.  In  an  action  brought 
to  foreclose  a  mortgage  uj)on  land,  the  holder  of  the  legal  title, 
to  whom  the  pi-emises  had  been  conveyed  by  the  mortgagor,  was 
made  a  defendant ;  but  no  personal  judgment  for  the  debt  was 
demanded  against  him  in  the  complaint,  and  he  was  notified  to 
that  effect  in  the  usual  manner.  He  pleaded  a  counterclaim, 
setting  up  the  following  facts :  that  the  plaintiff  conveyed  the 
land  to  the  mortgagor  by  a  deed,  with  full  covenants  of  title  ;  that 
the  mortgagor  conveyed  the  same  premises  to  the  defendant  by  a 
similar  deed,  and  also  assigned  the  plaintiff's  covenants  and  all 
rights  of  action  for  their  breach  ;  that  said  covenants  had  been 
broken  by  the  existence  of  an  outstanding  paramount  title  and 
prior  incumbrances,  and  the  defendant  had  been  evicted  under 
the  same,  to  his  great  damage,  for  which  damages  judgment  was 
demanded  against  the  plaintiff.  Evidence  in  support  of  this 
answer  was  excluded  at  the  trial,  and  the  defendant  appealed. 
The  New  York  Court  of  Appeals,  sustaining  the  ruling  below,  an- 
nounced the  doctrine  that  the  demands  of  the  plaintiff  and  of  the 
defendant  must  be  reciprocal,  in  order  that  there  can  be  any  place 
for  a  counterclaim.^     In  an  action  to  recover  the  price  of  goods 

1  National  Fire  Ins.  Co.  v.  McKay,  21  gal  cause  for  an  independent  suit  on  tlie 

N.  Y.  191,  195,  per  Comstock  J.  :  "  Upon  plaintiff's  covenants,  without  any  demand 

the  defendant's  own  statement,  I  do  not  see  against  himself  being  at  all  involved  in 

that  any  thing  was  in  litigation  between  the  controversy.    Without  undertaking  at 

hira  and  the  plalntitf,  or  that  any  judg-  this  time  to  expound  the  provisions  of  the 

nient  could  be  rendered  against  him  ex-  code  whicli  relate  to  the  counterclaim,  I 

cept  one  for  costs  for  interposing  a  ground-  am  satisfied  that  they  do  not  apply  to  such 

less  defence  to  the  action.     No  cause  of  a  case  as  this.     Of  course  the  claim  could 

action   existed   against   him.     The   com-  only  be  enforced  in  this  case  byajudg- 

plaint  claimed  nothing  against  him  per-  ment   in   the   defendant's   favor   for   the 

sonally,    and     stated     no     facts    as    the  damages  sustained  in  consequence  of  the 

foundation   of  such   a   decree.     The   an-  eviction.     But   the   plaintiff   might,    not- 

svver  sliowed   that   he   had    no    title    or  withstanding  such  a  judgment,  be  entitled 

interest  in  the  mortgaged  premises  to  be  to  a  decree  for  a  foreclosure  and  sale.  The 

affected  by  tlie  decree.     His  defence  must  alleged  counterclaim  does  not  impair  or 

therefore  be  deemed  to  have  been  put  in  affect  the  right  to  that  relief     I  appre- 

for  the  mere  purpose  of  establishing  a  le-  heud   that  a  counterclaim,  when   estab- 


764 


CIVIL   REMEDIES. 


sold  and  delivered,  the  answer  contained  a  so-called  counterclaim 
which  purported  to  show  that  the  plaintiff  held  lands  under  a 
deed  of  trust  which  he  was  in  equity  bound  to  convey  to  the  de- 
fendant, and  prayed  a  judgment  directing  such  conveyance.  The 
Supreme  Court  in  New  York  decided  that  these  facts,  if  properly 
pleaded,  would  not  constitute  a  counterclaim  in  opposition  to  the 
cause  of  action  stated  in  the  complaint ;  and  directly  held  the 
doctrine  that  a  counterclaim  must  in  some  sort  defeat  the  plain- 
tiff's recover}'-,  or  interfere  with  the  judgment  that  would  other- 
wise be  rendered  in  his  favor.^ 

§  745.  These  cases  must  be  considered  as  establishing  the  doc- 
trine, that  the  defendant's  cause  of  action,  in  order  to  constitute  a 
valid  counterclaim,  must  to  some  extent  defeat,  modify,  qualify, 
or  interfere  with,  the  relief  which  would  otherwise  be  obtained  by 
the  plaintiff.  The  sweeping  statements  and  broad  generalities  of 
the  opinions  ought,  however,  to  be  limited  withiii  their  proper 
bounds,  by  pointing  out  the  only  possible  instances  in  which  the 
principle  can  apply.     It  is  said  by  one  of  the  judges  that  the 


lislied,  must  in  some  way  qualify,  or  must 
defeat,  the  judfjment  to  which  the  plaintiff  is 
otherwise  entitled.     In  a  foreclosure  suit,  a 
defendant  who  is  personally  liable  for  the 
debt,  or  whose  land  is  burdened  by  the 
lien,  may  probably  introduce  an  offset  to 
reduce   or   extinguish    the    claim.      But 
where  his  personal  liability  is  not  in  ques- 
tion, and  where  he  disclaims  all  interest  in 
the  mortgaged  premises,  I  do  not  see  how 
he  can  demand  a  judgment  against  the 
plaintiff  on  a  bill,  or  a  note,  or  a  bond,  or 
a  covenant.      Such  is  virtually  this  case. 
The  defendant  has,  as  he  insists,  a  cause 
of  action  against  the  plaintiff  upon  a  bro- 
ken covenant ;  but  that  cause  of  action, 
if  it  exists,  does  not  enable  him  to  resist 
or  modify  the  relief  to  which  the  plaintiff 
is  entitled."     See  also  Agate  v.  King,  17 
Abb.  Pr.  159  (Gen.  Term,  1862).     An  ac- 
tion to  foreclose  a  mortgage  against  K. 
and  others.     K.  owned  the  land,  but  was 
not  personally  liable  for  the  debt,  and  no 
personal  judgment  against  him   was  de- 
manded.,   He  set  up,  as  a  counterclaim,  a 
demand  for  86,000  damages  arising  from  a 
breach  b}-  the  jilaintitf  of  a  distinct  con- 
tract to  convey  land.     This  was  held  not 
to  be  a  counterclaim  :  it  clearly  did  not 


fall  under  the  first  subdivision  :  it  did  not 
fall  under  the  second  subdivision,  because, 
in  an  action  to  foreclose  a  mortgage  as 
against  all  the  defendants  except  the  one 
personally'  liable,  the  cause  of  action  does 
not  arise  out  of  contract ;  and  also  because 
no  judgment  was  asked  against  K.  Some 
portions  of  the  opinion  do  not  agree  with 
the  reasoning  of  Comstock  J.  quoted 
above :  while  the  decision  reached  is  in 
harmony  with  that  case,  the  dicta  of  the 
judge  are  not  entirely  so.  And  see  Car- 
penter V.  Leonard,  5  Minn.  155. 

1  Mattoon  v.  Baker,  24  How.  Pr.  329, 
331  (Gen.  Term),  per  Bockes  J.  After 
reciting  the  allegations  as  given  above, 
the  opinion  proceeds  :  "  Would  this  con- 
stitute a  defence  to  the  plaintiff's  action 
for  goods  sold  ?  Clearly  not.  Nor  would 
it  be  such  a  counterclaim  as  the  defendant 
would  have  a  right  to  interpose  by  way  of 
answer  to  the  plaintiff's  alleged  grounds 
of  action.  Such  equitable  claim  for  re- 
lief would  afford  no  answer  to  the  plain- 
tiff's claim  for  judgment.  He  would  still 
be  entitled  to  recover  according  to  the  alle- 
gations of  his  complaint,  without  any  de- 
duction even  on  account  of  the  matters 
stated  in  the  answer.     A  counterclaim,  to 


COUNTERCLAIM. 


765 


counterclaim  "  must  consist  in  a  set-off  or  claim  by  way  of  recoup- 
ment, or  be  in  some  way  connected  with  the  subject  of  tlie  action 
stated  in  the  complaint."  This  rule  could  only  be  broken  by 
counterclaims  belonging  to  the  second  subdivision.  In  respect  to 
all  those  falling  within  the  first  subdivision,  they  all,  by  the  very 
terms  of  the  definition,  arise  out  of  the  same  contract  or  trans- 
action set  forth  in  the  complaint,  or  they  are  connected  with  the 
subject  of  the  action.  There  is,  therefore,  in  this  class,  no  room 
for  a  possible  violation  of  the  rule  laid  down  by  the  learned 
judge.     The   counterclaim  must,  from  its  very  nature,  be  con- 


be  available  to  a  party,  must  afford  to  bini 
protection  in  some  way  against  tlie  plain- 
tifl''s    demand  for    judgment,   eitber    in 
whole  or  in  part.     It  must  therefore  con- 
sist in  a  set-off,  or  claim  by  way  of  recoup- 
ment, or  be  in  some  way  connected  with 
the  subject  of  the  action  stated  in  the  com- 
plaint.    It  must  present  an  answer  to  the 
plaintiff's  demand  for  relief ;  must  show  that 
he  is  not  entitled,  either  at  law  or  under  the 
applications  of  just  principles  of  equity, 
to  judgment  in  his  favor,  as,  or  to  the 
extent,  claimed  in  the  complaint.     It  must 
therefore  contain,  not  only  the  substance 
of  what  is  necessary  to  sustain  an  action 
in  favor  of  the  defendant  against  tiie  plain- 
tiff, but  it  must  also  operate  in  some  way 
to  defeat,  in  whole  or  in  part,  the  plain- 
tiff's right  to  recover  in  the  action.     An 
answer  which  does  not  meet  this  require- 
ment is  insufficient,  whether  regarded  as 
a  defence  or  as  a  counterclaim.     If  a  per- 
son  be   sued  on  a  promissory   note,    he 
cannot  set  up,  by  way  of  defence  or  coun- 
terclaim, a  contract  with  tlie  plaintiff  tor 
the  purchase  of  lands,  and  allege  payment 
of  the  purchase-price,  and  claim  a  decree 
in  the  action  for  a  specific  performance  ; 
nor  couhl  he,  in  such  an  action  on  a  prom- 
issory note,  have  a  foreclosure  of  a  mort- 
gage against  the  plaintiff,  especially  if  the 
latter  were  not  personally  liable  for  the 
mortgage-debt."     The  same  principle  was 
again  approved  by  the  New  York  Court 
of  Appeals  in  a  recent  decision.     "  Coun- 
terclaim," it  was  said,  "  is  a  new  term  in- 
troduced   into    the   code,    and    which   is 
limited  and  defined  therein.     When  the 
action  is  upon  contract,  unless  the  coun- 
terclaim  arises   out   of    the    contract   or 
transaction  set  forth  in  the  complaint  as 


the  foundation  of  the  plaintiff's  claim,  or 
be  connected  with  the  subject  of  the  ac- 
tion, it  must  be  a  legal  or  equitable  cause 
of  action  against  the  plaintiff  arising  upon 
contract,  and  existing  at  the  commence- 
ment of  the  action.     It  is  manifest,  how- 
ever, that  every  cause  of  action  existing 
in   favor   of    the   defendant   against   the 
plaintiff,  arising  upon  contract,  cannot  be 
the  subject  of  a  counterclaim.     It  must  be 
a  cause  of  action  upon  which  something 
is  due   the  defendant  which   can  be  ap- 
plied   in    diminution    of   the    plaintiff's 
claim.     For  instance,  a  cause  of  action  for 
the  specific  performance  of  a  contract  in 
reference  to  real  estate  arises  upon  con- 
tract, and  yet  cannot  be  set  up  as  a  coun- 
terclaim,  unless   it    grew    out   of,   or    is 
connected  with,  the  cause  of  action  alleged 
in    the    complaint.  .  .   .   The    object    of 
introducing  counterclaims  into  the  prac 
tice  under  the  code  was  to  enable  parties 
to  settle  and  adjust  all  their  cross-claims 
in  a  single  action  as  far  as  they  could." 
Waddell  v.  Darling,  51  N.  Y.   327,  330. 
See  also  Pattigon  i'.  Richards,  '2:1  Barb. 
143,    145.     This   doctrine    was   fully    ap- 
proved   and    adopted    by   the    Supreme 
Court  of  Wisconsin  in   the  very   recent 
case  of  Dietrich  v.  Koch,  35  Wise.  618, 
626.     In  the  case  of  Cavalli  v.  Allen,  57 
N.  Y.  508,  which  was  an  action  to  recover 
the  possession  of  land,  brought  by  a  ven- 
dor against  the  vendee  in  possession,  on 
the  ground  that  a  balance  of  the  purchase- 
price  remained  unpaid,  the  defendant  was 
permitted  to  set  up  as  a  counterclaim  a 
note  which  he  held  against  the  plaintiff, 
and  thus  to  extinguish  the  amount  due 
on  the  land  contract. 


766  CIVIL    REMEDIES. 

nected  with  the  subject  of  the  action  ;  and  therefore  the  relief 
demanded  by  it  and  that  prayed  for  1)}'  the  plaintiff  cannot  be 
entirely  independent  of  each  other.  It  is  in  counterclaims  of  the 
second  subdivision  alone  that  the  doctrine  can  be  employed  and 
applied  with  any  practical  results.  And,  of  these  cases,  it  is 
plain  that  all  those  in  which  the  complaint  and  the  counterclaim 
both  demand  a  money  judgment  comply  with  the  rule.  It  is 
only  when  one  or  the  other  seeks  to  recover  some  equitable  relief 
that  its  violation  becomes  possible.  The  limitation  thus  estab- 
lished by  the  New  York  courts  may  be,  and  probably  is,  correct  ; 
but  at  the  same  time  it  is  a  judicial  interj^olation  into  the  statu- 
tory language  which  contains  no  such  restriction.  The  legis- 
lature has  said :  "  When  the  action  arises  on  a  contract,  any  other 
cause  of  actioti  also  arising  on  a  contract  may  also  be  a  counter- 
claim." What  grant  of  authority  could  be  clothed  in  more  gen- 
eral terms  than  this?  The  courts,  however,  say,  "  It  is  not  true 
that  any  other  cause  of  action  arising  on  contract  may  be  a  coun- 
terclaim :  it  must  be  connected  with  the  subject  of  the  action, 
and  must  operate  in  some  way  to  defeat,  in  whole  or  in  part,  the 
plaintiff's  right  of  recovery."  This  mode  of  interpretation, 
when  carried  beyond  very  narrow  limits,  becomes  a  usurpation 
of  the  law-making  function,  and  an  actual  ref)eal  of  statutory 
provisions. 

§  746.  The  decisions  made  by  the  courts  of  other  States  present 
the  same  general  notions  in  respect  to  the  nature  and  scope  of 
the  counterclaim.^  In  Wisconsin  the  counterclaim  is  recognized 
to  the  fullest  extent  as  including  relief  of  an  equitable  nature,  and 
as  being  available  in  actions  brought  to  obtain  specific  remedies, 
such  as  those  affecting  or  establishing  the  plaintiff's  title  to  land. 
In  a  suit  to  quiet  title  to  land,  the  plaintiff  alleged  his  possession 
and  claimed  his  title  under  a  certain  tax-deed,  which,  with  all 
the  proceedings  in  relation  thereto,  was  particularly  described. 
The  defendant  answered  by  way  of  counterclaim  that  he  was  in 
possession  and  asserted  his  title  under  another  tax  sale  and  deed, 
which,  with  the  proceedings,  was  sufficiently  set  forth.  He 
prayed  judgment  that  the  title  might  be  decreed  to  be  in  himself. 
This  answer  was  held  to  be  a  good  counterclaim,  the  court  de- 
claring that  it  conformed  in  every  particular  with  the  definition 

1  See  Allen  v.  Sliackelton,  15  Ohio  St.  145,  147,  per  Wilder  J. ;  Hill  v.  Butler, 
6  Ohio  St.  2U7,  216,  per  Swan  J. 


COUNTERCLAIM. 


767 


given  b}^  the  cocle.^  Tlie  Supreme  Court  of  Missouri  has  also 
described  tlie  counterclaim  in  entire  conformity  with  the  judicial 
definitions  already  given.^  The  language  of  the  provision  in  the 
Indiana  code  is  somewhat  broader  than  that  which  is  found  in 
most  of  the  other  codes.  The  interpretation  put  upon  it,  how- 
ever, will  aid  in  ascertaining  the  general  spirit  and  object  of  the 
entire  legislation  which  introduced  this  class  of  defences.  In  an 
action  to  rescind  a  conveyance  of  land  made  by  the  plaintiff  to 
the  defendant  on  the  ground  of  an  alleged  fraud,  the  answer, 
pleaded  as  a  counterclaim,  denied  the  fraud,  insisted  upon  the 
validity  of  the  deed,  stated  the  plaintiff's  continued  and  wrong- 
ful possession  and  acts  of  waste,  and  demanded  judgment  for  the 
possession  of  the  land,  for  the  rents  and  profits  thereof,  and  for 
damages  on  account  of  the  waste.  This  answer  was  held  to  be 
a  good  counterclaim  so  far  as  it  sought  to  recover  the  possession 
and  the  rents  and  profits,  but  not  in  respect  to  the  demand  for 
damages  on  account  of  the  waste.^ 


1  Jarvis  v.  Peck,  19  Wise.  74,  per 
Dixon  C.  J. :  "  It  does  not  deny  the  plain- 
tiff 's  demand,  except  so  far  as  it  is  founded 
upon  liis  possession,  but  seeks  to  extin- 
guish it  by  an  equitable  cross-action.  It 
is  a  claim  which  of  itself  would  constitute 
a  cross-action  in  favor  of  the  defendant 
against  the  plaintiff  in  a  separate  suit." 

^  Holzbauer  v.  Heine,  37  Mo.  443,  per 
Wagner  J. :  "  It  must  contain  tlie  sub- 
stance necessary  to  sustain  an  action  on 
behalf  of  the  defendant  against  the  plain- 
tiff, if  the  plaintiff  had  not  sued  the  de- 
fendant. It  must  have  a  tendency  to 
show  an  independent  cause  of  action,  — a 
claim  existing  in  favor  of  the  defendant 
against  the  plaintiff,  arising  either  out  of 
the  contract  or  transaction  sued  on,  or  out 
of  some  other  contract.  The  term  is  new 
to  the  law  ;  but  it  is  sufficiently  plain  and 
simple.  When  the  defendant  has  a  cause 
of  action  against  the  plaintiff,  upon  which 
he  might  have  maintained  a  suit,  such 
cause  of  action  is  a  counterclaim.  The 
parties,  then,  have  cross-demands  ;  and,  in 
fact,  there  are  two  causes  of  action  before 
the  court  for  trial  in  the  same  suit.  Both 
parties  are  to  a  certain  extent  plaintifls, 
and  both  defendants.  The  answer,  then, 
does  not  substantially  differ  from  a  peti- 
tion ;  and  the  reply  performs  substantially 


the  same  office  as  the  answer  to  the  peti- 
tion. Each  party  claims  affirmative  relief 
from  the  other.  If  both  parties  establish 
their  claims,  the  judgment  is  rendered  for 
one  or  the  other,  according  as  his  demand 
may  be  found  to  be  in  excess."  See  also 
Hay  V.  Short,  49  Mo.  139,  142,  which  cor- 
rects a  dictum  of  Holmes  J.  in  Jones  v. 
Moore,  42  Mo.  419. 

3  Woodruff  V.  Garner,  27  Ind.  4,  per 
Frazer  J.  :  "  Was  this  counterclaim  good 
on  demurrer  ?  It  is  not  questioned  that 
it  averred  facts  sufficient  in  an  indepen- 
dent suit  to  entitle  the  defendant  to  a  judg- 
ment ;  but  it  is  urged  that  these  facts 
could  not  be  pleaded  by  way  of  counter- 
claim in  this  suit.  A  counterclaim  is  de- 
fined to  be  '  any  matter  itvising  out  of, 
or  connected  with,  the  cause  of  action 
which  might  be  the  subject  of  an  action  in 
favor  of  the  defendant,  or  which  would 
tend  to  reduce  the  plaintiff's  claim  for 
damages.'  It  may  not  be  easy  to  define 
the  full  meaning  and  application  of  this 
statute  ;  and  it  will  therefore  be  safer,  and 
less  likely  to  produce  confusion,  if  the 
court  shall  at  present  consider  only  the 
question  of  its  influence  upon  the  case  im- 
mediately in  judgment.  To  say,  as  was 
inadvertently  done  in  Slayback  v.  Jones, 
9  Ind.  470,  that  the  counterclaim  is  the 


768  CIVIL   REMEDIES.  " 

§  747.  The  foregoing  cii.ations  fully  sustain  both  the  conclu- 
sions reached  in  the  preliminary  independent  analysis  of  the  stat- 
ute, and  the  course  of  reasoning  upon  which  they  were  based. 
The  feature  or  limitation  which  is  pointed  out  by  some  of  the 
cases,  as  necessarily  involved  in  all  counterclaims  belonging  to 
the  second  subdivision,  —  namely,  that  the  recovery  therein 
must  defeat,  modify,  or  interfere  with,  the  relief  otherwise  recov- 
erable by  the  plaintiff,  —  results  from  the  fact  that  the  codes 
make  no  provisions  for  two  independent  and  antagonistic  judg- 
ments rendered  in  favor  of  the  adverse  parties  in  the  same  action. 
One  judgment  alone  is  contemplated  by  the  statute,  Avhich  shall 
determine  the  substantial  rights  of  the  parties.  Even  in  equita- 
ble actions,  where  relief  may  be  conferred  upon  defendants  as 
against  the  plaintiffs  or  as  against  each  other,  such  relief  must  be 
compatible  with  that  granted  to  the  plaintiff,  so  that  the  whole 
may  be  contained  in  one  judgment  without  opposition  or  contra- 
diction. If  an  action  upon  contract  is  brought  to  recover  money 
alone,  either  debt  or  damages,  and  a  counterclaim  for  money, 
arising  upon  an  entirely  distinct  contract,  is  interposed,  the  re- 
sulting judgment  would  necessarily  be  single,  since  it  would  be 
rendered  merely  for  the  difference  between  the  two  adverse 
sums  found  due  by  the  ]uvj  or  the  court.  The  implied  restric- 
tion upon  the  use  of  counterclaims,  therefore,  applies  only  where 
one  or  both  of  the  cross-demands  are  equitable.  It  cannot  be 
enforced  in  an  action  to  recover  possession  of  lands  or  to  recover 
possession  of  chattels,  since  in  neither  of  these  instances  does 
the  cause  of  action  "  arise  out  of  contract,"  and  a  counterclaim 
under  the  second  subdivision  is  therefore  impossible. 

§  748.  I  shall  finish  this  inquiry  into  the  general  nature  of  the 
counterclaim  by  a  brief  statement  of  the  mode  in  which  it 
should  be  formally  pleaded.    The  defendant  must,  in  some  express 

same  .thing  as  recoupment,  would  be  giv-  code,  require  two  or  more  separate  suits 

ing   a  definition   obviously  less  compre-  to  determine  it.     Tliis  is  not  tlie  spirit  of 

hensive  than  that   given   by  the  statute  the  code."     In  Eastman  v.  Linn,  20  Minn, 

above   quoted.      The  counterclaim  com-  433,  wiiich  was  also  an  action  to  quiet 

prebends   recoupment,   and   much   more,  title,  a  similar  counterclaim  for  the  recov- 

It  hardly  admits  of  a  question  that  it  em-  ery  of  the  land  in  question  by  the  defend- 

braces  also  wiiat  was  known  as  the  cross-  ant   was   sustained.     For   an   exliaustive 

bill  in  equity  against  the  plaintiff.     Unless  discussion  of  the  counterclaim  as  defined 

this  be  so,  it  would  result,  that,  in  many  by  the  Indiana  code,  and  for  a  statement 

cases,  what   formerly   might   have   been  of  tiie   rules   in   relation   to  its  use,  see 

settled  in  one  litigation,  would,  under  the  Campbell  v.  Koutt,  42  Ind.  410,  413-416. 


COUNTERCLAIM.  769 

and  definite  manner,  indicate  his  design  of  treating  and  relying 
upon  this  particular  portion  of  his  answer  as  a  counterclaim. 
Whether  it  stands  alone,  and  thus  constitutes  the  entire  answer, 
or  whether  it  is  united  with  other  defences  or  counterclaims,  it 
must  be  so  distinguished  by  the  formal  language  employed,  that 
the  plaintiff  and  the  court  may  recognize  it  at  once  as  a  counter- 
claim, and  not  as  a  simple  defence.  It  is  not  enough  that  the 
defendant  state  facts,  which,  if  true,  would  constitute  a  cause  of 
action  against  the  plaintiff :  he  must  also  state  his  intention  to 
regard  these  facts  as  constituting  the  afiSrmative  cause  of  action, 
and  not  to  regard  them  as  a  defence.  This  intention  must  be 
indicated  either  by  naming  the  matter  thus  pleaded  "  a  counter- 
claim,"—  that  is,  by  declaring  that  it  is  pleaded  as  such,  —  or  by 
concluding  it  with  a  prayer  for  a  judgment  granting  the  desired 
relief.  The  better  practice  is  —  audit  should  be  universal — to 
use  both  of  these  characteristics  marks  ;  to  commence  the  particu- 
lar allegations  with  the  formal  statement  that  they  are  pleaded  as 
a  counterclaim,  and  to  end  them  with  the  usual  prayer  for  relief 
as  in  a  complaint  or  petition.  This  practical  rule  of  pleading  is 
fully  sustained  by  the  decided  cases. ^  There  is  one  controlling 
reason  why  the  defendant  should  designate,  in  a  certain  and 
obvious  manner,  the  special  character  of  the  pleading.  In  all  the 
States  but  one  or  two,  the  plaintiff  must  repli/  to  a  counterclaim, 
or  its  averments  of  fact  are  admitted  to  be  true.  He  ought  not 
to  be  subjected  to  this  penalty  unless  he  is  told  in  the  most 
express  terms   that  the  pleading   is   a  counterclaim.     It  would 

1  Bates  V.  Rosekrans,  37  N.  Y.  409,  and  most  satisfactory  form  of  giving  that 
411,  per  Hunt  J. ;  McConihe  v.  Hollister,  intimation  is  by  a  statement  that  the 
19  Wise.  269  ;  Hatchings  v.  Moore,  4  Mete,  pleading  is  a  counterclaim,  or  by  a  prayer 
(Ky.)  110;  Wilder  v.  Boynton,  63  Barb,  for  relief."  In  McConihe  v.  Hollister,  the 
547 ;  McAbee  v.  Randall,  41  Cal.  136.  court  said :  "  We  are  inclined  to  the 
See,  co«fra,  Brannaman  v.  Palmer,  Stan-  opinion,  that  where  an  answer  does  not  in 
ton's  Code  (Ky.),  p.  90.  In  Bates  v.  form  set  up  a  counterclaim,  but  contains 
Rosekrans,  Hunt  J.  said  :  "  I  think  the  allegations  sufficient  either  for  a  defence 
answer  given  by  the  court  below  is  also  a  or  for  a  counterclaim,  it  should  be  con- 
sound  one ;  to  wit,  that  the  pleading  does  strued  to  set  up  a  defence  merely."  In 
not  purport  to  be  a  counterclaim.  It  Wilder  v.  Boynton,  the  answer  alleged 
designates  itself  simply  as  a  "  further  de-  "  as  a  second  defence  "  a  breach  by  the 
fence,"  and  there  rests.  No  particular  plaintiff  of  the  contract  sued  on,  and  ended 
form  of  words  is  necessary  to  make  a  plead-  as  follows  :  "  Whereby  the  defendant  sus- 
ing  a  counterclaim  ;  and  if  the  party  had,  tained  damages  to  the  amount  of,  &c. ; 
in  any  reasonable  language,  intimated  whicli  sum  the  defendant  iriV/recoif/)  against 
that  he  intended  to  make  a  personal  claim  any  demand  of  the  plaintiff."  This  was 
in  his  own  favor  against  the  plaintiff,  it  held  to  be  a  sufficient  pleading  of  the  mat- 
would  have  been  sufficient.    The  ordinary  ter  as  a  counterclaim. 

49 


770  CIVIL    REMEDIES. 

have  been  better  if  the  courts  had  laid  down  the  most  explicit 
rule,  and  had  required  the  defendant  to  name  his  pleading :  but 
the  cases  do  not  go  to  this  length  ;  and  a  prayer  for  relief, 
appended  to  the  proper  allegations  of  fact,  will  supply  the  place 
of  a  name.  It  has  been  held,  that  when  the  defendant  has  set  up 
facts  Avhich  really  constitute  a  defence,  but  has  mistakenly  called 
them  a  counterclaim,  formally  pleading  them  as  such,  he  must 
stand  by  the  designation,  and  cannot  treat  them  as  a  defence, 
and  have  the  benefit  of  them  as  a  bar  to  the  plaintiff's  recovery.^ 
This  ruling,  however,  is  without  any  cogent  reason  in  its  favor, 
would  often  work  injustice,  and  seems  opposed  to  some  of  the 
cases  already  quoted.^ 

II.    Tlie  Parties  in  their  Relations  with  the  Counterclaim. 

§  749.  1.  The  Relations  of  the  Defendant  in  general  with  the 
Counterclaim  :  it  must^  in  general^  he  a  Demand  in  Favor  of  the 
Defendant  who  pleads  it.  In  all  the  States  whose  codes  do  not 
contain  a  provision  in  favor  of  sureties  or  joint-debtors,  the  rule 
is  established  without  exception  that  the  counterclaim  must  be 
a  demand,  existing  in  favor  of  the  defendant  who  pleads  it  ;  in 
other  words,  the  defendant  cannot  set  up  and  maintain  as  a  valid 
counterclaim  a  right  of  action  subsisting  in  favor  of  another  per- 
son, even  though  there  may  be  close  legal  relations  between  him- 
self and  such  other  person.  The  sure  test  is  very  simple. 
Could  the  defendant  have  maintained  an  independent  action 
upon  the  demand  if  he  had  made  it  the  basis  of  a  separate  suit  ? 
If  he  could  not,  then  he  cannot  use  it  as  a  counterclaim.  To 
this  proposition  there  is  no  judicial  dissent  nor  exception  ;  and 
the  cases  which  I  shall  cite  are  intended  to  illustrate  the  various 
circumstances  in  which  the  rule  has  been  applied. 

§  750.  The  most  common  case  is  that  of  a  surety.  When 
sued  alone,  or  together  with  the  principal  debtor,  he  cannot  inter- 
pose as  a  valid  counterclaim  any  cause  of  action  existing  in  favor 
of  that  principal,  —  not  even  one  arising  from  a  breach  by  the 
plaintiff  of  the  very  contract  in  suit.-^     There  are  instances  in 

1  Ferreira  v.  De  Pew,  4  Abb.  Pr.  131  terclaim,"  was  not  permitted  to  treat  it  as 

(Sp.   Term),  per  Brady  J.;  Campbell  v.  a  "cross-complaint." 
Routt,  42  Iiid.  410,  415.    See  also  McAbee         '^  See  De  Leyer  y.  Michaels,  5  Abb. 

V.  Randall,  41  Cal.  136,  where  the  defend-  Pr.  203. 
ant,  having  named  his  answer  a  "  coun-         3  Gillespie  v.  Torrance,  25  N.  Y.  306, 


COUNTERCLAIM.  771 

which  equity  will  undoubtedly  relieve  the  surety  when  the  prin- 
cipal debtor  is  insolvent,  and  holds  valid  claims  against  the  plain- 
tiff which  he  might  assert :  but  such  equitable  relief  would  not 
be  in  the  form  of  a  counterclaim ;  it  would  be  defensive  merely, 
and  would  not  include  any  recovery  against  the  plaintiff  by  the 
surety.  If  the  principal  debtor  and  the  surety  are  sued  together, 
and  the  former  interposes  the  counterclaim  existing  in  his  own 
favor  and  succeed  on  it,  the  result,  of  course,  operates  as  a  defence 
in  aid  of  the  surety  :  the  plaintiff's  demand  being  partly  or 
wholly  extinguished,  the  surety  would  necessarily  obtain  the 
benefit  of  such  extinction.^ 

§  751.  The  rule  is  not  confined  to  sureties.  It  requires,  in 
general,  —  the  only  exception  being  the  case  where  a  separate 
judgment  is  possible  —  that  the  counterclaim  should  exist  in 
favor  of  all  the  defendants,  and  that  all  the  persons  in  whose 
favor  it  exists  should  be  defendants  in  the  action,  and  that  it 
should  be  pleaded  in  their  common  behalf.  Thus,  where  one  is 
sued,  a  demand  in  favor  of  himself  and  a  former  partner  not  a 
party  to  the  suit  is  inadmissible  as  a  counterclaim ;  ^  and,  con- 
versely, in  an  action  against  partners  ujDon  a  firm  liability,  a 
counterclaim  interposed  by  one  of  them,  alleging  a  demand  for 

308,  310,  per  Selden  J. ;  s.  c.  4  Bosw.  36  ;  was  insolvent.  This  equitable  relief, 
7  Abb.  Pr.  462;  La  Farge  v.  Halsey,  1  however,  would  not  be  in  the  shape  of  a 
Bosw.  171;  4  Abb.  Pr.  397;  People  v.  recovery  against  the  plaintiff.  In  La  Farge 
Brandreth,  3  Abb.  Pr.  n.  s.  224  (Ct.  of  v.  Halsey,  the  defendants  were  sureties 
App.),  per  Hunt  and  Porter  JJ.  ;  East  for  the  lessee  on  a  lease,  and  were  sued 
River  Bank  v.  Rogers,  7  Bosw.  493 ;  for  rent  in  arrear.  They  set  up,  as  a 
Lasher  v.  WiUiamson,  55  N.  Y.  619;  counterclaim,  damages  sustained  by  the 
0'BIenisy.Karing,57N.Y.649.  Gillespie;;,  lessee  from  a  breach  by  the  plaintiff 
Torrance  was  an  action  against  an  indorser  of  an  agreement  made  between  himself 
of  a  note.  He  alleged,  as  a  counterclaim,  and  the  tenant.  This  was  overruled,  be- 
that  he  indorsed  for  the  accommodation  cause  the  right  of  action  was  in  the  lessee 
of  Van  P.,  the  maker ;  that  the  note  was  alone.  East  River  Bank  v.  Rogers  was 
given  for  the  price  of  timber  sold  by  the  the  ordinary  case  of  a  guarantor  sued  for 
plaintiff  to  Van  P.  ;  that  plaintiff  war-  the  debt  secured.  He  pleaded,  as  a  coun- 
ranted  the  quality  of  the  timber  to  the  terclaim,  a  debt  due  from  the  plaintiff  to 
buyer,  —  a  breach  of  this  warranty,  and  his  principal ;  and  it  was  struck  out  as 
consequent  damages  to  Van  P.,  for  which  frivolous. 

defendant  demanded  judgment.     This  at-  i  O'Blenis   v.   Karing,  57  N.  Y.  649  ; 

tempted  counterclaim  was  rejected  for  the  Springer  v.  Dwyer,  50  N.  Y.  19. 
reasons  stated  in  the  text.     The  opinion  -  Campbell    v.    Genet,   2   Hilton,  290. 

of  Selden  J.  is  very  elaborate  and  instruc-  See  Bird  v.  McCoy,  22  Iowa,  549,  —  a  pe- 

tive.     While  holding  that  the  surety  has  culiar  case,  in  which  parties  were  held  in- 

no  legal  counterclaim  nor  set-off,  Mr.  Jus-  eluded   as   defendants   in    the  firm  name 

tice  Selden  is  of  opinion  that  he  would  be  against  which  the  action  was  brought, 
relieved  in  equity  if  the  principal  debtor 


772  CIVIL   REMEDIES. 

damages  accruing  to  him  individually  from  thel^reach  of  a  sepa- 
rate contract  be^'w^en  himself  and  the  plaintiff,  must  be  rejected, 
because  it  is  not  in  favor  of  all  the  defendants  who  are  thus 
jointly  sued. ^  A  person  sued  in  a  representative  capacity — for 
example,  as  a  receiver  —  to  recover  trust-funds  in  his  hands,  or 
to  enforce  the  performance  of  his  fiduciary  duty,  cannot  avail 
himself,  by  way  of  counterclaim,  of  a  demand  due  to  himself  in 
his  personal  and  private  capacity  ;^  and  the  converse  of  this  par- 
ticular rule  is  also  equally  true.  Under  any  and  all  circum- 
stances, a  counterclaim  consisting  of  a  demand  in  favor  of  a 
third  person  not  a  party  to  the  action,  and  having  no  relations 
with  the  issues  involved  therein,  is  entirely  inadmissible.^ 

§  752.  2.  The  Relations  of  the  Plaintiff  with  the  Counterclaim : 
it  must,  in  general,  be  a  Demand  against  the  Plaintiff'  or  all  the 
Plaintiffs  in  the  Action.  The  very  conception  of  a  counterclaim 
implies  that  it  is  a  cause  of  action  against  the  plaintiff.  The  test 
is  here  equally  simple  and  plain  as  in  the  case  of  the  defendant. 
Would  the  facts,  if  alleged  in  a  separate  action  against  the  plain- 
tiff, make  out  a  cause  of  action  against  him,  and  show  him  liable 
to  the  appropriate  relief?  If  not,  they  do  not  and  cannot  con- 
stitute a  counterclaim.  This  rule,  although  universal,  is  most 
frequently  applied  in  actions  brought  by  assignees  of  the  demands 
in  suit.  When  the  plaintiff  is  such  an  assignee,  no  demand 
accruing  to  the  defendant  against  the  assignor  can  possibly  be 
enforced  as  a  counterclaim.  Such  liability  of  the  assignor  may, 
under  certain  circumstances,  be  a  good  defence  in  bar  of  the 
recovery  ;  but,  as  it  is  not  a  liability  of  the  plaintiff,  it  cannot  be  a 
counterclaim  :  it  is  impossible,  by  means  of  a  valid  demand  against 
A.  alone,  to  obtain  a  judgment  against  B.  The  decisions  are 
unanimous,  and  sustain  the  doctrine  stated  above  under  all  possi- 
ble cii'cumstances.^     The  rule  is  applied  by  the  cases  cited  in  the 

1  Peabody  I'.  Bloomer,  5  Duer,  678 ;  6  411;  Babbett  r.  Young,  51  Barb.  4GG ; 
Duer,  53  ;  3  Abb.  Pr.  353,  per  Woodruff  Ernst  v.  Ktinkle,  5  Ohio  St.  520  ;  Dolph 
J.:  "To  an  action  against  several  joint-  v.  Bice, 21  Wise.  590,593;  Briggs  z'  Sey- 
debtors  for  a  debt  due  by  tlieni  as  part-  niour.  17  Wise.  255;  Carpenter  v.  Leon- 
ners,  one  of  tliem  cannot  avail  liiniseif,  ai-d,  5  Minn.  155.  See,  however,  Moore- 
either  by  way  of  set-off  or  counterclaim,  head  v.  Hyde,  38  Iowa,  382,  —  a  case  in 
of  such  a  defence."  See  this  c:ise,  and  which  tiie  defendants  were  held  to  be 
especially  the  opinion  of  Hoffman  J.  at  trustees  ot  an  express  trust  in  a  contract 
Special  Term  on  the  subject  of  joint  made  with  the  plaintiff,  and  a  counter- 
liabiliti/.  claim  by  them  was  sustained. 

2  Johnson  v.  Gunter,  0  Bush,  534.  *  Boyd  r.  Foot,  5  Bosw.  110;  Vassear 
»  Bates  V.    Kosekrans,   37  N.  Y.  409,     v.    Livingston,    13    N.    Y.    218,   252,   per 


COUNTERCLAIM. 


773 


note  to  every  species  of  assignee,  private  and  official  ;  and  is 
established  with  absolute  unanimity. 

§  753.  It  is  an  essential  element  in  the  legal  notion  of  a  coun- 
terclaim that  it  must  be  a  cause  of  action;  must  consist  of  a  right 
to  some  affirmative  relief,  and  not  be  matter  simply  defensive, 
either  in  bar  of  the  plaintiff's  recovery,  or  in  reduction  of  its 
amount.  Thus,  in  an  action  for  the  price  of  work,  labor,  and 
material,  the  defendant  in  his  answer  set  up  payments  made  by 
him  in  excess  of  the  plaintiff's  demand,  but  did  not  in  a  formal 
manner  call  his  pleading  a  counterclaim,  nor  demand  judgment 
for  the  surplus.  At  the  trial  he  insisted  that  his  allegations  were 
admitted  because  the  plaintiff  had  not  replied.  His  contention  was 
overruled,  not  upon  the  defects  of  form,  but  upon  the  absence  of 
any  cause  of  action.  The  payments  as  stated  to  have  been  made 
being  voluntary,  no  right  to  recover  back  the  excess  existed  ; 
and  the  answer  was  nothing  more  than  the  defence  of  payment.^ 


Denio  J.;  s.  c.  4  Duer,  285,  293,  per 
Duer  J. ;  Dillaye  v.  Niles,  4  Abb.  Pr. 
253 ;  Ferreira  v.  Be  Pew,  4  Abb.  Pr.  131 ; 
Thompson  v.  Sickles,  46  Barb.  49 ;  Mc- 
Ilvaine  v.  Egertoii,  2  Robt.  422  ;  Wolf  v. 
H.,  13  How.  Pr.  84,  per  E.  Darwin  Smith 
J. ;  Davidson  v.  Remington,  12  How.  Pr. 
310 ;  Gleason  v.  Moen,  2  Duer,  0.39  ;  Cum- 
ings  V.  Morris,  3  Bosw.  560 ;  Wiltsie  v. 
Northam,  3  Bosw.  162  ;  Duncan  v.  Stan- 
ton, 30  Barb.  533,  536  ;  Tyler  v.  Willis,  33 
Barb.  327 ;  Spencer  v.  Babcock,  22  Barb. 
826,  335  ;  Weeks  v.  Pryor,  27  Barb.  79  ; 
Van  (le  Sande  v.  Hall,  13  How.  Pr.  458, 
per  Paige  J.  ;  Linn  v.  Rugg,  19  Minn.  181, 
185  ;  Swift  V.  Fletcher,  6  Minn.  550  ;  Mc- 
Conihe  v.  HoUister,  19  Wise.  269.  In 
this  case,  the  defendant  prayed  equitable 
relief  that  the  mortgage,  &e.,  sued  on  by 
an  assignee,  might  be  cancelled  on  account 
of  the  mortgagee's  fraud  in  obtaining  it. 
The  court  held  that  this  answer  was  in 
form  a  counterclaim,  but  that  it  could 
not  be  relied  on  as  such  by  the  defendant 
and  the  relief  granted,  because  the  assign- 
or was  a  necessary  party  ;  and  the  opinion 
implies,  that,  if  he  had  been  made  a  party, 
the  relief  could  have  been  granted.  Not- 
withstanding this  array  of  authorities, 
and  the  explicit  language  of  the  codes, 
the  doctrine  has  sometimes  been  over- 
looked by  courts.  Thus,  in  Page  v. 
Ford,  12  Ind.  46,  and  Slayback  v.  Jones, 


9  Ind.  470,  the  Supreme  Court  of  Indiana 
entirely  failed  to  notice  that  the  demands 
existing  against  an  assignor,  which  were 
set  up  by  the  defendants  against  the  as- 
signee (the  plaintiff),  could  not  possibly 
be  counterclaims  ;  and  that  the  discussion 
of  the  court  upon  other  points  was  there- 
fore wholly  unnecessary.  In  the  later 
case  of  Perry  u.  Cliester,  12  Abb.  Pr.  n.  s. 
131,  Mr.  Justice  Monell  Iscliargeable  with 
the  same  palpable  oversight.  The  action 
was  on  an  appeal  bond  given  by  two  de- 
fendants to  A.,  and  by  him  assigned  to  the 
plaintiff.  One  of  the  defendants  set  up  a 
demand  in  his  own  favor  alone  against  A., 
the  assignor,  as  a  counterclaim.  The 
learned  judge  discusses  at  great  length 
the  question,  whether  one  defendant  ia 
such  an  action  can  rely  upon  a  claim  due 
to  himself  alone  ;  and  finally  reaches  the 
conclusion,  that,  as  the  undertaking  of 
the  defendants  was  joint,  the  demand  of  the 
single  defendant  is  not  available.  He  is 
wholly  oblivious  to  the  fact  that  no  such 
claim  could  be  interposed  at  all  in  the  ac- 
tion against  the  plaintiff. 

1  Holzbauer  v.  Heine,  37  Mo.  443; 
and  see  McPherson  v.  Meek,  30  Mo.  345 ; 
Lash  L\  McCormick,  17  Minn.  403  (partial 
failure  of  consideration)  ;  Kent  y.  Cantrall, 
44  Ind.  452,  459;  McCrary  v.  Deming, 
38  Iowa,  527,  531  ;  Lathrop  v.  Godfrey,  6 
N.  Y.  S.  C.  96,  —  a  peculiar  case,  in  which 


774  CIVIL    REMEDIES. 

And  payments  or  disbursements  made  by  a  trustee  or  holder  of  a 
fund,  and  set  up  by  him  in  his  answer  to  an  action  for  an  account 
and  enforcement  of  the  trust  brought  by  a  beneficiary,  do  not 
create  any  right  of  action,  and  cannot,  tlierefore,  be  a  counter- 
claim.^ 

§  754.  In  actions  by  married  women  to  recover  demands  due 
to  them  personally  as  a  part  of  their  separate  propert}^  or  their 
personal  earnings,  and  the  like,  debts  and  liabilities  of  their  hus- 
bands cannot  be  successfully  interposed  as  counterclaims  ;  ^  and, 
in  a  suit  by  a  widow  to  recover  dower  in  land  conveyed  by  her 
husband  during  the  marriage  without  her  release,  the  defendant 
cannot  counterclaim  damages  arising  from  the  breach  of  a  covenant 
of  warranty  in  the  husband's  deed  ;  for  no  right  of  action  exists 
against  her.^  The  demand  must  also  be  against  the  plaintiff  in 
the  same  capacity  as  that  in  which  he  sues.  Thus,  where  the 
action  is  b}^  the  plaintiff  in  his  j^rivate  and  personal  capacity,  a 
claim  against  him  as  an  executor  or  an  administrator  cannot  be 
made  a  valid  counterclaim.*^  But,  in  an  action  by  an  executor  on 
a  note  given  to  the  testator,  the  defendant  can  set  up  by  way  of 
counterclaim  a  demand  for  damages  caused  by  the  fraud  of  the 
deceased  in  the  sale  of  land  for  the  price  of  which  the  note  was 
given. ^  Not  only  must  the  counterclaim  be  a  right  of  action 
against  the  plaintiff,  but  it  must,  in  general,  be  against  the  plain- 
tiff alone,  and  against  all  the  plaintiffs.^     The  exception  to  this 

a  demand  against  the  plaintiff's  assignor,  and  the   counterclaim   was   a   debt  due 

who,  it  was  alleged,  was  the  real  party  in  from  the  testator.     In  support  of  its  deci- 

interest,  was   sustained  ;  citing  Hunt   v.  sion,  that  these  demands  did  not  affect 

Chapman,  51  N.  Y.  555 ;  First  Nat.  Bank  the   plaintiff   in   the   same  capacity,  the 

V.  Kidd,  20  Minn.  234,  242,  —  an  action  court  cited  Fry  v.  Evans,  8  Wend.  530 ; 

to   foreclose   a   mortgage,    in   which    de-  Mercein  v.   Smith,  2    Hill,  210;  but  see 

fendant  claimed  that  the  debt  should  be  Westfall   v.   Dungan,    14   Ohio   St.   276. 

enforced    upon   other   lands   before   pro-  When  a   receiver,   trustee,   executor,   or 

ceeding  against  those  in  suit.  administrator,  sues  to  recover  a  debt  due 

1  Duffy  V.  Duncan,  35  N.  Y.  187,  189.  to  the  estate,  a  demand  by  the  defendant 
It  has  been  held  that  no  counterclaim  is  for  services  rendered  on  behalf  of  the 
possible  against  the  State  beyond  the  de-  estate  on  the  plaintiff's  employment  is  a 
feating  the  action  brought  by  it,  because  good  counterclaim.  Davis  v.  Stover,  58 
a, judicial   proceeding   cannot    be   main-  N.  Y.  473. 

tained  against  it :  the  counterclaim  can  be  ^  Isham  v.   Davidson,  52  N.  Y.   237. 

used  as  a  dffence,  but  no  further.     Com-  See  McLean  v.  Leach,  68  N.  C.  95  ;  Bran- 

riionwealth  v.  Todd,  9  Bush,  708.  don  v.  Allison,  66  N.  C.  532,  for  the  pecu- 

2  Paine  v.  Hunt,  40  Barb.  75.  liar  rules  prevailing  in  North  Carolina. 

3  Hill  V.  Golden,  16  B.  Mon.  551,  554.  ^  Mynderse   v.  ^Snook,    1    Lans.    488. 
*  Merritt  v.  Seaman,  6  Barb.  330.  The     The  opinion  of  T.  A.  Johnson  J.  contains 

plaintiff  sued  on  a  note  given  to  him  as  an  elaborate  discussion  of  the  general 
executor  after  the  death  of  the  testator,    subject  of  joint  and  separate  demands  and 


COUNTERCLAIM.  775 

rule  is  expressly  provided  for  by  the  codes,  and  only  exists  in 
those  cases  where  a  separate  judgment  may  be  rendered  for  or 
against  the  person  against  whom  the  counterclaim  is  pleaded. 
This  exceptional  case  will  be  examined  in  the  following  subdi- 
vision. 

§  755.  3.  W7ie7i  the  Goiinterclaim  may  he  in  Favor  of  one  or  more 
of  sever  alDefenda7its,  and  against  one  or  more  of  several  Plaintiffs. 
The  provision  found  in  nearly  all  the  codes,  that  the  counter- 
claim must  exist  "  in  favor  of  a  defendant  and  against  a  plaintiff 
between  whom  a  several  judgment  might  be  had  in  the  action," 
implies  that  whenever  the  single  defendant  or  all  the  defendants 
jointly  may  recover  against  one  or  some  of  the  plaintiffs  and  not 
against  all,  or  whenever  one  or  some  of  the  defendants  and  not 
all  may  recover  against  the  single  plaintiff  or  all  the  plaintiffs 
jointly,  or  whenever  both  of  these  possibilities  are  combined,  a 
counterclaim  may  be  interposed  against  the  one  or  some  of  the 
plaintiffs  and  not  against  all,  and  b}^  the  one  or  some  of  the 
defendants  and  not  by  all.  Such  a  severance  in  the  recovery  is 
possible  when  the  right  sought  to  be  maintained  on  the  one  side, 
and  the  liability  to  be  enforced  on  the  other,  are  not  originally 
joint.    The  discussion  is  therefore  reduced  to  the  question,  When 

judgments.     See  also    S.  P.   Belknap   v.  formance,  but  tlie  purchasers  had  wholly 

Mclntyre,  2  Abb.  Pr.  366  ;  McPherson  v.  refused  to  accept  and  pay  for  the  cattle, 

Meek,  30  Mo.  345  ;  Merrick  v.  Gordon,  20  to  their  damage,  for  which  they  demanded 

N.  Y.  93,  97  ;  N.  Y.  Ice  Co.  v.  Parker,  8  judgment  against  the  playitiff,  Gadsden  & 

Bosw.   688.     It  may  be   interesting   and  Co.,  of  course,  not  being  parties  to  the 

instructive  to  contrast  this  rule  as  it  has  suit.     This   counterclaim  was  sustained, 

been  inferred  from  the  language  found  in  the  court  saying  :  "  The  defendants  could 

the  codes  generally  with  the  very  different  hold  him  [the  plaintiff]  liable  in  this  ac- 

rule  that  results  from  the  freer  provisions  tion  for  tlie  damages  sustained   for  not 

of  the  Iowa  statute.     In  an  action  brought  receiving  the  cattle  ;  that  is  to  say,  though 

by  a  single  plaintiff  to  recover  damages  others  may  have  been  jointly  liable  with 

for  the  non-performance  of  a  contract  to  him  [the   plaintiff],  the  defendants  could 

sell   and   deliver   cattle,    the    defendants  recover    their    damages    in    this    action 

alleged  the  following  facts  as  a  counter-  against  him.     The  defendants  could  have 

claim,  and  proved  the  same  at  the  trial :  sued  the  plaintiff  on  this  contract ;  and,  if 

that,  subsequently  to  the  agreement  sued  so,  they  could  set  up  their  counterclaim, 

upon,  they  entered  into  a  second  and  dif-  and  hold  him  for  his  refusal  to  receive, 

ferent  contract  with  the  plaintiff  and  cer-  And  within  the  rule  recognized  by  this 

tain  other  persons  composing  a  partner-  court   in   Ryerson  v.  Hendrie,   22  Iowa, 

ship,  under  the  firm  name  of  Gadsden  &  480,  this  would  be  so,  tiiough  the  contract 

Co.,  by  which  they  agreed  to  deliver,  and  was  made  with  the  new  parties  as  a  part- 

the  firm  to  receive,   the  same   cattle  at  nership."     Redman  v.  Malvin,  23  Iowa, 

the  same  time  and  place,  but  at  an  en-  296,  299.     See  also  Musselman  v.  Galli- 

hanced  price  ;  that  this  second  contract  gher,  32  Iowa,  383  ;  Baird  v.  Morford,  29 

was   substituted    instead   of  the    former  Iowa,  531,  534. 
one  ;  that   they  had  fully  tendered   per- 


776  CIVIL    REMEDIES. 

may  a  severance  in  the  judgment  bo  had,  so  that  it  may  be  ren- 
dered for  a  part  of  tlie  plaintiffs  and  against  the  otliers,  and 
against  a  part  of  the  defendants  and  for  the  others  ?  From  the 
answer  to  this  inquiry  we  shall  ascertain  between  what  parties 
"  a  several  judgment  may  be  had  in  the  action  ; "  and  as  a  further 
consequence,  when  the  counterclaim  may  be  against  one  or  more 
of  the  plaintiffs,  or  in  favor  of  one  or  more  of  the  defendants. 
In  pursuing  the  discussion,  I  shall  collect  and  examine  some  of 
the  leading*  judicial  decisions  which  have  given  a  construction  to 
the  clause,  and  shall  endeavor  to  ascertain  from  them  the  general 
principles  and  rules  that  may  determine,  in  each  particular  case, 
when  a  counterclaim  of  this  form  and  iiature  is  proper. 

§  756.  (1.)  Against  one  or  some  of  the  Plaintiffs.  An  action  for 
an  accounting  and  a  recovery  of  the  amounts  found  due  was 
brought  by  three  plaintiffs  against  two  defendants  under  the  fol- 
lowing circumstances :  The  five  jDarties  had  entered  into  an 
agreement  for  the  publication  of  a  newspaper :  the  defendants 
were  to  be  the  actual  publishers,  and  to  have  charge  of  the 
business ;  and,  after  paying  all  the  expenses,  the  net  proceeds 
were  to  be  divided  into  five  equal  parts,  of  which  the  defendants 
were  to  retain  two,  and  one  of  the  other  "  three  parts  shall  be 
paid  by  [defendants]  in  cash  to  each  of  the  other  parties  to  this 
agreement,"  —  the  plaintiffs.  The  answer,  besides  other  sepa- 
rate defences,  contained  a  counterclaim  consisting  of  a  judgment 
recovered  by  the  defendant  R.  against  the  plaintiff  H.,  and  as- 
signed to  both  the  defendants  before  the  suit  was  commenced. 
This  counterclaim  was  set  up  against  the  plaintiff  H.  alone. 
The  New  York  Court  of  Appeals  held,  that  although  the  action 
was  inform  joint,  yet  the  right  of  each  plaintiff  was  several  ;  and 
a  several  judgment,  declaring  the  sum  to  which  each  was  entitled, 
was  necessary. 1     Nothing  can  be  more  firmly  settled  than  the 

1  Taylor    v.    Root,    4     Keyes,     335 :  tion  is  undoubtedly  correct,  that   where 

"  Hence,  as  to  either  of  the  plaintiffs,  if  the  cause  of  action  is   strictly  joint,  and 

the  defendants   had  averred  and  proved  the  recovery,  if  had,  is  for  the  joint  bene- 

paynicnt  in  full  of  his  share,  the  defence  fit  of  the  plaintiffs,  the  defendant  cannot 

as    to    such    plaintifi"  would    have    been  set  off  or  counterclaim  the  individual  debt 

effectual  ;  and  yet    the  other  two  plain-  of  either  plaintiff  to  defeat  or  reduce  a 

tiffs  would  have  been  entitled  to  judg-  joint  recovery."     Such,  however,  was  not 

ment   for  the   several   amounts  of  their  the  present  case,  because  there  was  no 

shares.  .  .  .  The   same    principle   is   ap-  joint  demand  on  the  part  of  the  plaintiffs, 

piicable  to  a  defence  in  the  nature  of  a  The    counterclaim    was,    therefore,    sus- 

counterclaim.  .  .  .  The    plaintiff's    posi-  tained. 


COUNTERCLAIM.  777 

general  rule,  that  in  the  absence  of  a  statutory  provision  to  the 
contrary,  where  an  action  is  brought  by  a  partnership  on  a  claim 
due  the  firm,  no  demand  in  favor  of  the  defendant  against  one 
or  some  of  its  members  can  be  used  as  a  counterclaim  ;  but  an 
apparent  exception  to  this  rule  has  been  admitted.  If  the  busi- 
ness had  been  carried  on  by  one  or  more  of  the  firm  as  ostensible 
partners,  a  debt  owing  by  him  or  them  may  be  interposed  as  a 
counterclaim,  although  all  the  members  have  united  in  the 
action.  By  their  mode  of  conducting  the  business,  the  ostensible 
partner  or  partners  had  been  held  out  to  the  world  as  the  real 
firm,  and  they  could  sue  or  be  sued  without  joining  the  others 
as  parties  to  the  proceeding. ^  The  case  of  a  demand  against 
the  plaintiff  or  plaintiffs  on  the  record,  and  others  who  are  not 
parties  to  the  suit,  being  pleaded  as  a  counterclaim,  has  already 
been  considered.  It  does  not  present  exactly  the  question  now 
under  consideration,  but  depends  for  its  solution  upon  the  same 
general  principles.  It  is  settled  by  the  decisions,  that  a  joint 
indebtedness  or  liability  due  from  the  plaintiff  and  from  others 
not  parties  to  the  suit  cannot  be  used  as  a  counterclaim  against 
the  plaintiff,  because  such  a  cause  of  action  cannot  be  severed  and 
a  judgment  rendered  against  a  part  onl}^  of  the  persons  liable.^ 

§  757.  Upon  the  general  question.  When  can  a  several  judg- 
ment be  rendered  between  some  of  the  parties  to  an  action  ? 
there  has  been  much  conflict  of  judicial  opinion,  and  discrepancy 
of  decision.  It  resolves  itself  into  the  broader  inquiry.  How 
far  has  the  common-law  doctrine  of  joint  rights  and  liabilities 
been  changed  b}^  the  new  procedure  ?  The  judges  of  one  school 
have  denied  any  modification  in  these  legal  notions,  and  have 
restricted  the  language  of  the  statute  to  equitable  proceedings. 
Another  school  have  gone   to  the  opposite   extreme,  and  have 

1  Van  Valen  v.  Kussell,  13  Barb.  590,  statute,  but  upon  the  general  provision  of 

592,  per  Edwards  J.  ;  citing  1  T.  R.  361  the  code,  §  248,  that  a  "judgment  may 

(n.)  ;  Ex  parte  Enderby,  2  B.  &  C.  389;  be  given  for  or  against  one  or  more  of 

Smith  V.  Watson,  2  B.^&  C.  401.  several  plaintiff's,  and  for  or  against  one 

"  See  supra,  §  754  ;  Schubart  v.  Har-  or  more  of  several  defendants  ;  "  which  is 
teau,  34  Barb.  447  ;  Belknap  v.  Mclntyre,  the  same  as  found  in  all  the  other  codes. 
2  Abb.  Pr.  366  ;  Mynderse  v.  Snook,  1  Where,  in  Kentucky,  an  action  was  com- 
Lans.  488  ;  contra  in  Iowa,  Redman  v.  raenccd  against  a  resident  of  the  State  by 
Malvin,  23  Iowa,  296;  and  in  North  a  non-resident  firm,  a  demand  against  o«e 
Carolina,  Sloan  v.  McDowell,  71  N.  C.  of  the  plaintiffs  was  allowed  as  an  equita- 
356-358;  Neal  v.  Lea,  64  N.  C.  678;  ble  set-off  or  counterclaim,  because  the  de- 
Harris  V.  Burwell,  65  N.  C.  584.  This  fendant  could  not  sue  ujioii  it  in  that  State, 
ruling    is   not   based   upon   any  peculiar  Wallenstein  v.  Selizman,  7  Bush,  175. 


778 


CIVIL    REMEDIES. 


declared  the  ancient  rules  as  to  joint  right  and  liability  to  be 
utterly  abolished,  so  that  a  severance  among  the  plaintiffs  or 
defendants  in  the  recovery  may  be  had  in  all  cases.^  This  loose 
or  liberal  interpretation  has,  however,  been  utterly  repudiated  by 
other  cases,  which,  as  it  seems  to  me,  establish,  by  a  very  decided 
preponderance  of  judicial  authority,  the  doctrine  as  now  gene- 
rally accepted  in  those  States  whose  codes  compose  the  two 
groups  mentioned  at  the  commencement  of  the   section.'-^     The 


'  See  Cowles  v.  Cowles,  9  How.  Pr. 
361.  The  action  was  brought  by  two 
plaintifEs  upon  a  promis-sory  note,  made 
payable  to  them  on  demand.  The  defend- 
ant alleged  facts  tending  to  show  tiiat  the 
note  was  the  sole  property  of  the  plaintiff, 
C,  and  stated  a  demand  in  his  own  favor 
against  C,  in  every  respect  proper  and 
sufficient  to  constitute  a  counterclaim,  if 
the  latter  had  been  the  only  plaintiff. 
This  answer  having  been  struck  out  on 
motion,  the  General  Term,  upon  appeal, 
pronounced  it  a  valid  counterclaim,  and 
available  to  the  defendant  as  pleaded. 
Two  questions,  it  was  said,  are  raised. 
"  First,  in  an  action  upon  contract  by  two 
or  more  plaintiffs,  can  one  of  them  have 
judgment  in  his  favor,  the  evidence  estab- 
lisliing  the  cause  of  action  in  him  alone? 
Secondly',  if  so,  can  the  defendant,  upon 
showing  the  cause  of  action  to  be  solely  in 
the  one  plaintiff,  avail  himself  of  a  set-off 
against  that  plaintiff  in  a  case  wjiere  he 
would  have  had  the  right  to  do  so  had  the 
action  been  commenced  by  that  plaintiff 
•alone'?"  Both  of  these  questions  were 
answered  in  the  affirmative.  It  was  said 
that  the  new  procedure  extended  the  rules 
of  equity  to  all  legal  actions,  and  so  far 
abrogated  the  legal  notions  of  joint  right 
and  liability  ;  that  the  sections  permitting 
a  judgment  "  to  be  given  for  or  against 
one  or  more  of  several  plaintiffs,  and  for 
or  against  one  or  more  of  several  defend- 
ants," are  most  general  in  their  terms,  and 
should  not  be  restricted  to  actions  in  which 
the  right  sued  upon  is  several,  and  not 
joint ;  and  that,  a  several  judgment  being 
thus  made  jiossihlp,  the  conclusion  as  to  the 
propriety  of  the  counterclaim  against  one 
plaintiff  followed  inevitably  from  the  ex- 
press language  of  the  statute.  In  other 
words,  no  matter  what  be  the  form  of  the 
action,  although  the  plaintiffs  have  alleged 


a  joint  right  in  themselves,  the  defendant 
may  controvert  this  allegation,  show  a 
several  right  in  one  of  them  alone,  and 
interpose  a  counterclaim  against  that 
one.  This  decision,  it  will  be  noticed, 
does  not  go  to  the  length  of  holding,  that, 
when  two  or  more  plaintiffs  sue  upon  a 
legal  right  which  is  confessedly  joint,  the 
defendant,  while  admitting  this  joint  cause 
of  action,  and  the  union  of  all  the  plain- 
tiffs therein,  may  assert  a  counterclaim 
against  one,  or  some  of  them  less  than  all. 
The  reasoning  of  tiie  learned  judge  seems 
logically  to  lead  to  that  result ;  for  it 
argues  that  a  several  judgment  is  possible 
in  all  cases  upon  contract ;  and,  if  possi- 
ble, the  counterclaim  is  expressly  permit- 
ted. See  also  the  dirtam  of  Folger  J.  in 
Simar  v.  Canaday,  53  N.  Y.  298,  301. 
The  same  construction  is  given  to  the 
provision  in  North  Carolina,  Sloan  v.  Mc- 
Dowell, 71  N.  C.  356,  357  ;  Neal  v.  Lea,  64 
N.  C.  678  ;  Harris  v.  Burwell,  65  N.  C.  584. 
-  A  few  cases  will  illustrate  this  pre- 
vailing doctrine.  In  Mynderse  v.  Snook, 
1  Lans.  488,  491-493,  the  court  discusses 
the  general  doctrine  of  joint  and  several 
liabilities  and  judgments ;  and  from  its 
able  opinion  I  make  the  following  ex- 
tracts :  "  The  demand  which  the  defend- 
ants had  was  against  the  plaintiff  and  V. 
jointly  as  partners  and  joint  contractors 
with  them.  It  was  for  damages  arising 
from  an  alleged  breach  of  the  contract  by 
these  two  partners.  This  claim,  as  is  ap- 
parent, was  not  against  the  plaintiff,  but 
against  the  firm  of  which  he  was  an  indi- 
vidual member.  Properly  there  could  be 
no  several  judgment  between  the  parties 
to  this  action  on  account  of  that  claim. 
It  was  not  upon  its  face  or  in  law  a  claim 
against  the  plaintiff  individually.  This  is 
the  test  (code,  §  150).  It  was  a  partner- 
ship debt  if  a  demand  existed.     Partners 


COUNTERCLAIM. 


779 


doctrine  established  by  these  decisions  is,  that  if  the  demand 
in  suit  was  originally  joint  and  several,  although  the  action  upon 
it  is  joint,  and  a  fortiori  if  it  was  several,  a  several  judgment 
miglit  have  been  recovered,  and  the  counterclaim  against  part  of 
the  plaintiffs,  or  in  favor  of  a  part  of  the  defendants,  is  possible : 
when  the  demand  in  suit  is  originally  joint,  a  severance  is  impos- 
sible. 

§  758.  (2.)  In  Favor  of  one  or  some  of  the  Befeyidants.  In  the 
following  cases  the  counterclaim  was  interposed  by  one  or  some 
of  the  defendants  against  the  single  plaintiff,  or  all  the  plaintiffs 
if  more  than  one.  The  same  general  principles  of  joint  and 
several  right  and  liability  control  this  class  of  actions  and  the 
one  just  considered,  and  the  same  decisions  are  authorities  in 
both.^     The  rule  is  settled,  that,  in  an  action  against  defendants 


are  not  joint  and  several  debtors,  but  joint 
debtors  only.  Nothing  is  better  settled 
than  the  general  rule,  that  a  creditor  of  a 
partnership  is  not  entitled,  as  matter  of 
law,  to  bring  a  separate  actiop,  and  have 
a  separate  judgment,  against  one  of  the 
several  partners  when  they  are  all  living." 
The  court  then  examined  and  criticised 
certain  cases  relied  upon  by  the  defend- 
ants. The  language  of  Ingraham  J.  in 
Schubart  v.  Harteau,  34  Barb.  447,  was 
declared  to  be  a  mere  dictum,  and  its  cor- 
rectness as  such  was  pointedly  denied. 
Briggs  V.  Briggs,  20  Barb.  477,  and  Par- 
sons V.  Nash,  8  How.  Pr.  454,  were  dis- 
tinguislied  from  the  case  at  bar.  The 
point  of  distinction  in  both  was  tiie  fact 
that  the  liability  of  the  defendants  therein 
was  several  as  well  as  joint;  so  that  a 
several  judgment  against  each  of  them 
would  have  been  possible.  "  The  grounds 
of  these  decisions,"  the  court  continues, 
"  were  undoubtedly  correct  if  tlie  demand 
on  which  the  action  was  brought  was  sev- 
eral as  well  as  joint,  so  that  the  plaintiff' 
might  have  had  a  several  judgment  in  the 
action  against  either  defendant.  It  ful- 
filled, in  that  view  of  it,  precisely  the  re- 
quirements of  the  code.  Neither  of  these 
cases  supports  the  dictum  in  Schubart  v. 
Harteau.  According  to  the  rule  there 
laid  down,  the  right  to  interpose  and 
prove  a  demand  by  way  of  counterclaim 
depends  upon  the  manner  and  form  of  the 
pleadings  in  the  action,  rather  than  upon 


the  general  principles  of  the  law.  This, 
I  am  sure,  is  not  the  true  meaning  of  §  150 
of  the  code.  By  that  section,  the  demand 
must  be  of  such  a  nature  and  character, 
that,  upon  the  general  rules  and  principles 
of  law,  a  several  judgment  may  be  had 
upon  it  in  the  action.  If  it  is  not  such,  the 
party  offering  it  is  not  entitled  to  use  it  in 
that  way." 

1  Peabody  v.  Bloomer,  5  Duer,  678, 
679,  per  Woodruff"  J.  ;  s.  c.  aub  nom.  Pea- 
body  V.  Beach,  6  Duer,  53  ;  3  Abb.  Pr. 
353.  The  same  construction  was  given  to 
the  statute  by  Mr.  Justice  Marvin,  and 
applied  to  the  admissibility  of  a  counter- 
claim, in  Parsons  v.  Nash,  8  How.  Pr. 
454  ;  and  as  iiis  reasoning  has  been  fre- 
quently approved,  and  his  conclusions 
adopted  by  otiier  courts,  I  shall  quote  his 
opinion,  not  as  a  binding  authority,  —  for 
it  was  delivered  at  Special  Term,  —  but 
as  an  argument.  The  three  makers  of  a 
joint  and  several  note,  H.,  N.,  and  P., 
were  sued  in  a  joint  action,  H.  being  the 
principal  debtor,  and  the  others  his  sure- 
ties. Tlie  answer  was  a  counterclaim  of 
a  judgment  in  favor  of  H.  alone  against 
the  plaintiffs  for  an  amount  greater  than 
the  sum  secured  by  the  note.  It  was  ad- 
mitted on  the  trial ;  and  the  plaintiffs 
moved  to  set  aside  the  verdict.  After 
referring  to  §  150,  the  judge  proceeds  : 
"  The  counterclaim  is  to  be  a  claim  ex- 
isting in  favor  of  a  defendant  and  against 
a  plaintiff  between  whom  a  several  judg- 


780  CIVIL  REMEDIES. 

who  are  joint  contractors  and  jointly  liable,  a  separate  judg- 
ment against  one  or  more  less  than  all  is  not  possible  except  in  a 
few  special  personal  defences  ;  that  in  an  action,  though  joint 
in  form,  against  defendants  who  are  joint  and  several  contract- 
ors, and  a  fortiori  against  defendants  who  are  severally  liable, 
such  a  separate  recovery  may  always  be  had.  The  doctrine  thus 
stated  has  been  applied  to  the  case  of  defendants  sued  upon  a 
bond  in  terms  joint  and  several.^ 

§  759.  A  peculiar  question  has  arisen  in  those  States  whose 
codes  permit  a  partnership  to  be  sued  by  its  firm  name.  In  such 
an  action,  a  counterclaim  in  favor  of  all  the  persons  actually  com- 
posing the  firm  may  be  pleaded  and  proved,  although  it  discloses 
the  existence  of  partners  who  had  not  been  mentioned  as  such 
in  the  petition  or  complaint.^  In  an  action  upon  an  injunction 
bond  executed  by  the  plaintiff  in  an  equity  suit  and  sureties,  the 
principal  defendant  was  permi'tted  by  the  Kentucky  Court  of 
Ajjpeals  to  counterclaim  damages  sustained  by  himself  individ- 
uall}'  from  the  wrongful  acts  of  the  plaintiff  committed  while  the 
injunction  was  in  force. ^  As  one  of  two  or  more  joint  debtors 
cannot  rely  upon  a  demand  due  to  him  separately,  upon  the  same 
principle  a  defendant  cannot  interpose  a  counterclaim  in  favor  of 
himself  and  another,  or  others  jointly  who  are  not  parties  to  the 
suit.^  Bonds  having  been  issued  in  the  name  of  a  town  in  aid  of 
a  railroad  under  color  of  statutory  proceedings,  the  town  brought 
an   equitable  suit   against   all  the  holders  thereof  to  have   the 

ment  might  be  liad  in  the  action.     This  same  effect,  Briggs  v.   Briggs,  20  Barb. 

clearly  indicates  that  there  may  be  cases  477,479;  Gordon  v.   Swift,  46  Iiid.  208, 

wliere  the  set-off  or  counterclaim  may  not  209  :  Johnson  v.  Kent,  9  Ind.  252  ;  Blan- 

be  due  to  or  in  favor  of  all  the  defendants  ;  kenship  v.  Rogers,  10  Ind.  333  ;  Knour  v. 

and  to  ascertain  between  whom  a  several  Dick,  14  Ind.  20;  Utley  v.  Foy,  70  N.  C. 

judgment  maybe  had  in  the  action,  we  303;  Newell  v.    Salmons,  22  Barb.  647; 

must  look  to  other  provisions'of  the  code,  Perry  v.  Chester,  12  Abb.  Pr.  n.  s.  131, 

particularly    §§    130    and    274.      In   my  133.      If,    however,   the   defendants    are 

opinion,  in  an  action  proper  for  a  set-off  joint  debtors,  no  such  counterclaim  is  ad- 

or  counterclaim    against  several  defend-  missible,   Pinckney    v.    Keyler,   4  E.   D. 

ants  severalli/ \inh\e,  or  joini/i/ and  severalty  Smith,  469;    Slay  back  v.  Jones,  9  lad. 

liable,  any  one  of  tliem  may  avail  himself  470. 

of  his   set-off  or  counterclaim  ;    or   any  ^  Bird  v.  McCoy,  22  Iowa,  549. 

number  of  the  defendants  to  whom  the  ^  Tinsley  v.  Tinsley,  15  B.  Mon.  454. 

set-off  or  coimterclaim  is  jointly  due  may  Although  the  particular   question  under 

avail  tliemselves  tlioreof."  discussion    was   not   alluded    to    by   the 

1  People    v.    Cram,   8   How.    Pr.    151.  court,  its  very  silence  must  be  taken  as 

The  opinion  in  this  case  has  been   fre-  an  admission  tliat  such  a  counterclaim  in 

quently    cited    with    approval,    and    has  favor  of  one  defendant  was  proper, 

never  been  questioned.     See  also,  to  the  *  Stearns  i;.  Martin,  4  Cal.  227,  229. 


COUNTERCLAIM.  781 

proceedings  declared  void,  and  the  bonds  themselves  cancelled. 
One  of  the  defendants  individually  set  up  as  a  counterclaim  a 
debt  to  himself  from  the  town  for  money  loaned.  This  answer 
was  overruled  on  the  merits,  the  court  holding  that  it  did  not  fall 
within  the  definition  of  any  species  of  counterclaim.  The  omis- 
sion to  rest  the  decision  upon  the  obvious  ground,  if  it  existed, 
that  a  counterclaim  in  favor  of  one  defendant  was  improper,  was 
a  plain  though  silent  admission  that  this  objection  was  untenable. 
In  such  an  action  a  separate  judgment  is  not  onl}-  possible,  but  is, 
in  fact,  absolutely  necessary. ^ 

§  760.  As  the  Iowa  code  is  unlike  that  of  any  other  State  in 
this  respect,  I  quote  somewhat  freely  from  a  very  recent  case, 
which  gives  a  construction  to  its  language,  and  explains  its  pecu- 
liar provisions.  In  an  action  against  a  husband  and  wife  jointly, 
three  counterclaims  or  cross-demands  were  pleaded  as  follows : 
(1)  B}^  both  defendants  jointly  to  recover  damages  caused  by  the 
plaintiff's  malicious  prosecution  of  the  wife  ;  (2)  by  the  husband 
alone  to  recover  damages  caused  by  the  malicious  prosecution  of 
his  minor  children  ;  (3)  by  the  husband  alone  to  recover  damages 
caused  by  the  malicious  prosecution  of  himself.  The  judgment 
of  the  court,  giving  a  construction  to  the  statute,  and  passing 
upon  the  validity  of  this  counterclaim  will  be  found  in  the  foot- 
note.' 

1  Town  of  Venice  v.  Breed,  65  Barb,  or  not,  if  matured  when  pleaded.     "  The 

597,  605,  606.  '  cross-demand  '   is    more   comprehensive 

-  Muselman  v.  Galiigher,  32  Iowa,  383,  than  either  the  set-offor  tiie  counterclaim. 
389.  Tliere  are,  first,  "  set-off,"  which  is  A  setoff  is  only  pleadable  in  an  action  on  a 
an  independent  cause  of  action  arising  on  contract,  and  must  itself  arise  on  contract, 
contract  or  ascertained  by  the  decision  of  A  counterclaim  must  arise  out  of  the 
the  court,  and  can  be  pleaded  only  in  an  ac-  cause  of  action,  or  be  connected  therewith, 
tion  on  contract ;  seco«c?/y,  "counterclaim,"  A 'cross-demand,'  however,  arises  upon 
which  is  a  cause  of  action  in  favor  of  the  any  independent  cause  of  action,  whether 
defendants,  or  some  of  them,  against  the  on  contractor  tort.  But  a  '  cross-demand,' 
plaintiffs,  br  some  of  them,  arising  out  of  unlike  a  counterclaim,  must  exist  in  favor 
the  contract  or  transaction  set  forth  in  the  of  all  the  defendants,  if  there  are  more 
plaintiff's  petition  as  the  foundation  of  than  one,  and  against  all  the  plaintiffs,  if 
his  claim,  or  connected  with  the  subject  there  are  more  than  one.  This  is  the 
of  the  action;  thirdly,  "cross-demand,"  plain  reading  of  the  statute  ;  so  that,  when 
which  is  a  statement  of  any  new  matter  there  are  several  defendants,  a  '  cross- 
constituting  anjj  cause  of  action  in  favor  demand '  in  favor  of  one  onh'  cannot  be 
of  the  defendant,  or  all  the  defendants,  if  pleaded."  Applying  these  principles,  the 
more  than  one,  against  the  plaintiff,  or  all  answer  in  question  was  held  to  be  wholly 
the  plaintiffs,  if  more  than  one,  and  which  bad.  The  demands  were  certainly  not 
the  defendant  or  defendants  might  have  set-offs,  since  they  arose  out  of  torts  : 
brought  when  the  suit  was  commenced,  they  were  not  counterclaims,  because 
or  which  was  then  held,  whether  matured  they  did  not  arise  out  of,  nor  were  they 


782  CIVIL    REMEDIES. 

§  761.  By  the  decisions  which  have  been  reviewed  in  the  fore- 
going paragraphs,  certain  specific  rules  are  clearly  established  for 
all  the  States  whose  codes  may  be  classed  in  either  of  the  two 
general  groups  mentioned  at  the  commencement  of  this  section. 
Firsts  when  the  defendants  in  an  action  are  joint  contractors,  and 
are  sued  as  such,  no  counterclaim  can  be  made  available  which 
consists  of  a  demand  in  favor  of  one  or  some  of  them.  Secondly^ 
when  the  defendants  in  an  action  are  jointly  ajid  severally  liable, 
although  sued  jointly,  a  counterclaim,  consisting  of  a  demand  in 
favor  of  one  or  some  of  them,  may,  if  otherwise  without  objec- 
tion, be  interposed.  Thirdly^  since  it  is  possible,  pursuant  to 
express  provisions  of  all  the  codes,  for  persons  severally  liable  to 
be  sued  jointly  under  certain  circumstances  in  a  legal  action,  — 
that  is,  in  an  action  brought  to  recover  a  common  money  judg- 
ment,—  a  counterclaim  in  favor  of  one  or  more  of  such  defend- 
ants may  be  pleaded  and  proved.  Fourthly^  in  all  equitable 
suits  wherein  persons  having  different  interests,  and  against 
whom  different  reliefs  are  demanded,  may  be,  and  constantly  are, 
united  as  codefendants,  a  counterclaim  existing  in  favor  of  one  or 
more  of  such  defendants  may  be  interposed,  free  from  any  objec- 
tion based  entirely  upon  the  situation  of  the  parties.  Fifthly^ 
when  two  or  more  persons  have  a  jomt  right  of  action,  and  unite 
as  plaintiffs  to  enforce  the  same,  a  counterclaim  cannot  be  ad- 
mitted against  one  or  some  of  them  in  favor  of  any  or  all  the 
defendants.  Sixthly^  when  two  or  more  p^'sons  have  separate 
rights  of  action,  and  they  are  properly  united  as  plaintiffs  in  one 
action  to  enforce  these  rights,  a  counterclaim  may  be  set  up 
against  one  or  more  of  them,  as  the  case  may  be.  Seventhly^  if 
two  or  more  plaintiffs  should  bring  an  action  joint  in  form,  and 
should  allege  and  claim  to  recover  upon  a  joint  cause  of  action,  — 
even  a  contract, — but  in  fact  the  joinder  was  improper  because 
as  to  some,  or  perhaps  all  but  one,  there  existed  no  right  of  action, 
a  recovery  could  be  had  in  favor  of  the  one  or  more  who  estab- 
lished a  cause  of  action,  and  the  complaint  be  dismissed  as  to 
the  others  ;  and  it  would  seem  to  follow  as  a  necessar}^  corollary 

connected  witli,  tlie  plaintiff's  cause  of  own  favor,  if  it  existed  at  all  ;  and  the 
action.  If  it  is  said  they  were  "  cross-  husband  could  not  join  with  her  in  en- 
demands,"  they  were  inadmissible,  be-  forcing  it,  whether  she  brought  an  action 
cause  they  were  in  favor  of  one  defendant  on  it  as  a  plaintiff,  or  pleaded,  it  as  a 
alone.  The  claim  of  damages  for  the  tort  "  cross-demand  "  in  an  action  against 
to  the  wife  was  declared  to  be  one  in  her  her. 


COUNTERCLAIM.  783 

that  a  counterclaim  might  be  interposed  against  the  one  or  more 
of  the  plaintiffs  under  such  circumstances  in  whose  favor  a  sepa- 
rate judgment  could  be  rendered.  Laatly^  in  equitable  actions, 
counterclaims  in  favor  of  one  or  some  of  the  defendants,  and 
against  one  or  some  of  the  plaintiffs,  must  be  permissible  as  a  gen- 
eral rule,  since  in  equity  the  common-law  doctrine  of  joint  right 
and  liability  does  not  generally  prevail,  and  separate  judgments, 
or  judgments  conferring  separate  relief,  among  the  parties,  are 
almost  a  matter  of  course. 

§  762.  Counterclaims  otherwise  proper  may  be  inadmissible  or 
ineffectual  for  the  want  of  the  necessary  parties  before  the  court, 
since  the  same  rules  as  to  parties  must  apply  to  them  as  would 
be  applied  if  the  facts  alleged  and  the  relief  demanded  were 
stated  in  a  complaint  or  petition  as  the  basis  of  a  separate  action. 
This  objection  will  more  frequently  present  itself  in  counter- 
claims that  are  equitable  in  their  nature.  As  the  relief  must  be 
denied  to  the  j)laintiff  in  an  equitable  action  unless  he  has  brought 
all  the  necessary  parties  before  the  court,  and  may  be  denied 
unless  he  has  brought  in  all  the  proper  parties,  and  as  the  defend- 
ant pleading  a  counterclaim  is  in  the  same  condition  as  an  ordi- 
nary plaintiff,  while  the  plaintiff  against  whom  it  is  pleaded  is  in 
the  position  of  an  ordinary  defendant,  it  follows,  first,  that  the 
relief  demanded  by  the  counterclaim  must  be  refused  if  all  the 
necessary  parties  are  not  present ;  and,  secondly,  that  it  may  be 
refused  if  any  proper  partias  have  been  omitted.  These  propo- 
sitions require  no  argument  or  citation  in  their  support.  They 
result  inevitably  from  the  fact  that  the  counterclaim  is  in  its 
nature  a  cross-action,  governed  by  the  same  rules  which  control 
a  suit  when  proceeding  in  the  ordinary  and  direct  manner. 
Several  examples  of  legal  actions  in  which  the  counterclaim  has 
failed  for  want  of  the  necessary  parties  have  already  been  quoted  ; 
namely,  those  decisions  in  which  counterclaims  against  the 
plaintiff  in  the  action,  and  others  jointly  liable  Avith  him,  or  in 
favor  of  the  defendant  and  others  jointl}^  interested  with  him,  have 
been  overruled.^  A  single  additional  authority  will  suffice  to 
illustrate  a  principle  which  really  needs  no  illustration.  In  an 
action  to  foreclose  a  mortgage,  brought  by  an  assignee  thereof, 
the  mortgagee  not  being  a  party  to  the  record,  the  defendants 
alleged,  as  an  equitable  counterclaim,  facts  tending  to  show  that 

1  See  supra,  §§  754  et  seq. 


784  CIVIL    REMEDIES. 

the  mortgage  and  the  note  secured  by  it  were  procured  to  be 
executed  by  the  mortgagee's  fraud,  and  that  the  plaintiff  took 
with  notice  of  the  fraud,  and  prayed  that  the  note  and  mortgage 
miglit  be  cancelled,  and  the  plaintiff  enjoined  from  enforcing 
them.  The  court  said  :  "  It  is  evident,  that,  if  the  allegations  of 
this  answer  were  in  the  form  of  a  complaint  in  a  separate  action 
asking  that  the  note  and  mortgage  be  surrendered  and  cancelled, 
the  railroad  [the  mortgagee]  would  be  a  necessary  party  defend- 
ant. The  defendant  then  could  not  set  up  the  facts  alleged  in 
his  answer  as  a  counterclaim  in  this  action,  for  the  reason  that  a 
new  party  must  be  brought  before  the  court."  ^  In  a  few  States 
this  difficult}^  is  very  properly  met  and  obviated  by  express  pro- 
visions of  their  codes,  which  authorize  the  addition  of  new  par- 
ties in  order  that  the  relief  demanded  by  the  counterclaim  or 
set-off  may  be  granted.^ 

III.   The  Subject- Matter  of  Counterclaims,  or  the  Nature  of  the 
Causes  of  Action  which  may  he  pleaded  as  Counterclaims. 

§  763.  This  general  subdivision  is  naturally  separated  into 
three  heads,  which  I  shall  proceed  to  examine  in  the  order  stated. 
A.  Nature  of  the  subject-matter  generally,  with  special  refer- 
ence to  the  question  whether  the  counterclaim  may  be  an  equi- 
table cause  of  action  and  may  result  in  the  granting  of  equitable 
relief,  or  Avhether  it  must  be  restricted  to  legal  causes  of  action 
and  reliefs.  B.  The  particular  questions  which  arise  under  the 
first  clause  or  branch  of  the  statutory  definition.  C.  Those 
which  arise  under  the  second  clause  or  branch  of  the  same  pro- 
vision. 

A.  Whether  a  Counterclaim  may  he  an  Equitahle  Cause  of  Action^ 
and  the  Means  of  obtaining  Uquitable  Relief ;  or  whether  it  must 
he  restricted  to  Legal  Causes  of  Action  and  Reliefs. 

§  764.  From  the  decisions  cited  in  the  foot-note,  the  following 
doctrines  and  rules  are  clearly  and  firmly  established.     In  an 

1  McConihe  v.  IloUister,  19  "Wise.  2G9.  as,  for  example,  the  grantor  in  the  deed 

See  also  Coursen  r.  Hamlin,  2  Duer,  513  ;  to  be  reformed.     The   case  of  Hicks  v. 

Cummings  !'.  Morris,  25  N.  Y.  G25;  but  see  Slieppard,  4  Lans.  335,  which   holds  the 

Du  Pont  V.  Davis,  35  Wise.  G31,640,  641,  contrary,  was  expressly  disapproved, 
which  holds  tliat  an  equitable  countercLaim  ^  Oliio,  §§  96,  98;    Ivans.  §§  97,  99; 

of  reformation,  and  tlie  like,  may  be  sus-  Neb.    §§    103,    105;     Ind.    §    63;    Iowa, 

tained,  and  the  relief  granted,  without  the  §   2602.     See    these    sections   quoted   at 

presence  of  parties  collaterally  interested ;  large,  supra,  §  584,  note. 


COUNTERCLAIM.  786 

equitable  action,  a  counterclaim  consisting  of  an  equitable  cause 
of  action,  and  demanding  equitable  relief,  may  be  interposed  if  it 
possesses  all  the  other  elements  required  by  the  definition,  and 
may,  in  many  if  not  most  cases,  be  pleaded  by  one  or  more  of 
the  defendants  less  than  all,  against  one  or  more  of  the  plaintiffs. 
The  language  of  the  statute  does  not  confine  the  use  of  this 
affirmative  species  of  defence  to  legal  actions,  nor  require  that  it 
should  necessarily  be  of  a  legal  nature  itself.  Adapting  itself  to 
the  character  of  the  action  in  which  it  is  introduced,  in  those 
which  are  legal  it  resembles,  although  much  broader  and  more 
com]3rehensive,  the  former  set-off  and  recoupment,  while  in  those 
which  are  equitable  it  often  takes  the  place  of  a  cross-bill  or 
complaint.  In  a  legal  action,  also,  an  equitable  counterclaim  may 
be  set  up  and  affirmative  relief  may  be  granted  by  its  means. 
As  the  codes  in  express  terms  permit  equitable  defences  in  such 
actions,  and  as  in  the  self-same  provision,  and  by  means  of  the 
same  language,  the  statute  authorizes  the  joining  of  as  many 
defences  and  counterclaims,  whether  legal  or  equitable,  or  hoth^  as 
the  defendant  may  have,  to  deny  the  possibility  of  an  equitable 
counterclaim  in  a  legal  action,  would  make  it  necessary,  if  any 
consistency  were  preserved,  to  deny  also  the  possibility  of  an 
equitable  defence.  The  courts,  as  may  be  seen  from  the  cita- 
tions made  below,  have,  with  a  few  unimjDortant  exceptions, 
been  unwilling  to  nullify  the  language,  and  defeat  the  design  of 
the  legislature  in  this  manner,  and  following  its  plain  meaning 
and  import,  they  have  freely  admitted  and  sustained  the  equi- 
table counterclaim  in  all  actions,  whether  legal  or  equitable,  where 
that  form  of  relief  was  appropriate,  and  was  authorized  by  the 
descriptive  terms  of  the  statute.^ 

§  765.  Whether  all  affirmative  equitable  relief  granted  to  a 
defendant  must  be  limited  to  the  cases  in  which  a  counterclaim 
is  possible,  that  is,  whether  a  defendant  is  unable  to  set  up  a  case 
for  equitable  affirmative  relief,  and  obtain  a  judgment  therefor  in 

'  Hicksville,  &c.  R.  R.  w.  Long  Island  Spalding   v.    Alexander,    6    Bush,    160; 

R.  R.,  48  Barb.  355,  360;  Fisher  y.Moolick,  Jarvis   v.   Peck,  19   Wise.  74;  Grimes  v. 

13  Wise.  321  ;  Sample   v.  Rowe,  24  Ind.  Duzan,  32  Ind.  861  ;  Woodruff  v.  Garner, 

208 ;  Lombard  v.  Cowham,  34  Wise.  486,  27    Ind.  4 ;  Eastman    v.   Linn,  20  Minn. 

491,  492,  and  cases  cited,  wliich  show  that  433  ;  Andrews  v.  Gillespie,  47  N.  Y.  487, 

in  Wisconsin  every  equitable  defence  must  490;  Cavalli  v.  Allen,  57  N.  Y.  508,  514. 

be  a  counterclaim  ;  Vail  v.  Jones,  31  Ind.  See,/>e?-  contra,  that  the  counterclaim  must 

467  ;  Charlton  v.  Tardy,  28  Ind.  452  ;  Du  always  be  a  legal  cause  of  action,  Jones 

Pont   V.  Davis,  35    Wise.   631,  639-641;  y.  Moore,  42  Mo.  413,  419. 

50 


786  CIVIL    REMEDIES. 

his  favor  against  the  plaintiff,  unless  he  can  bring  the  facts  con- 
stituting his  cause  of  action  within  some  one  of  the  species  of 
counterclaim  defined  by  the  codes,  is  another  question.  There 
are  decisions  which  answer  this  question  in  the  affirmative,  and 
hold  that  all  such  relief  must  be  denied  unless  the  defendant's 
cause  of  action  is  a  proper  counterclaim.  This  doctrine  was 
recently  maintained  by  the  Supreme  Court  of  New  York.  An 
action  was  brought  to  restrain  the  defendant  from  using  a  trade- 
mark alleged  to  be  the  sole  property  of  the  plaintiff.  The  answer 
asserted  that  the  trade-mark  in  question  belonged  in  fact  exclu- 
sively to  the  defendant,  that  the  plaintiff  had  no  right  to  it,  but 
was  unlawfully  and  wrongfully  using  it,  and  thereby  interfering 
with  and  injuring  the  defendant's  business,  and  concluded  by 
praying  for  an  injunction,  an  account,  and  judgment  for  dam- 
ages. At  the  trial,  the  defendant's  allegations  were  fully  sus- 
tained by  the  proofs,  and  he  obtained  the  judgment  demanded. 
This  judgment  was  reversed  on  appeal,  the  court  saying :  "  To 
entitle  the  defendant  to  affirmative  relief,  the  answer  must  set  up 
a  counterclaim. 1  The  claim  of  defendant  for  relief  is  not  a 
counterclaim  within  the  meaning  of  that  term  as  used  in  the 
code.  It  does  not  arise  out  of  the  transaction  set  forth  in  the 
plaintiff's  complaint,  nor  does  it  arise  on  contract,"  ^  The  gen- 
eral subject  of  the  affirmative  equitable  relief  which  may  be 
obtained  by  a  defendant  has  been  already  discussed,  and  the 
discussion  need  not  be  repeated.  Undoubtedly,  in  the  great 
majority  of  instances,  any  equitable  affirmative  relief  properly 
conferred  upon  a  defendant  would  fall  within  some  description 
of  a  counterclaim  ;  in  order  that  it  should  not  be  a  counterclaim, 
it  must  be  a  cause  of  action  entirely  independent  of  that  set 
forth  by  the  plaintiff,  and  not  arising  from  a  contract.  Under 
the  equity  practice  and  system  of  pleading  which  prevailed  prior 
to  the  codes,  the  matters  which  could  be  set  up  by  a  defendant  in 
a  cross-bill,  as  the  foundation  for  affirmative  relief  to  him,  must 
have  some  connection  with  the  matters  originallj'  charged  against 
him  by  the  plaintiff' 's  bill,  even  if  his  demand  did  not  directly 
arise  out  of  such  original  matters  ;  an  entirely  distinct  and  inde- 
pendent cause  of  action  could  not  be  alleged  by  the  defendant  in 
a  cross-bill ;  if  he  had  such  a  claim,  he  could  only  enforce  it  by  a 

1  Wriglit  V.  Delafield,  25  N.  Y.  266;         2  Qlen   &   Hall  Man.    Co.   v.   Hall,  6 
Garvey  v.  Jarvls,  54  Barb.  179.  Lans.  158,  161,  162. 


COUNTERCLAIM.  787 

separate  suit.^  The  codes  do  not  seem  to  have,  in  any  express 
manner,  enlarged  the  scope  and  operation  of  the  defendant's 
equitable  affirmative  relief  otherwise  than  by  the  provisions 
relating  to  the  counterclaim.  In  actions  of  a  legal  nature  it  is 
very  clear  that  no  affirmative  relief  can  be  obtained  by  a  defend- 
ant, unless  his  cause  of  action  or  demand  is  a  proper  counter- 
claim. 

§  766.  I  shall  close  this  branch  of  the  subject  by  mentioning 
some  special  instances,  or  actions  of  a  particular  character,  in 
which  it  has  been  held  that  a  counterclaim  is  not  possible,  or  that 
the  affirmative  relief  demanded  by  the  defendant  could  not  be 
the  subject  of  a  counterclaim.  In  an  action  for  a  limited  divorce 
on  the  ground  of  cruelty,  the  defendant's  answer,  charging  adul- 
tery by  the  plaintiff  and  demanding  an  absolute  divorce,  is  not 
a  proper  counterclaim  ;  ^  nor,  in  an  action  for  an  absolute  divorce 
because  of  adultery,  is  an  answer  alleging  cruelty  and  praying 
for  a  judicial  separation. ^  In  some  States  a  mechanic's  lien  is 
enforced,  not  by  any  special  proceedings,  but  by  an  ordinary 
equitable  suit.  An  answer  in  an  action  for  such  a  purpose, 
alleging  that  the  premises  described  in  the  comjjlaint  formed  the 
defendant's  "  homestead,"  and  were,  therefore,  pursuant  to  stat- 
ute, free  from  all  lien  or  charges  in  favor  of  creditors,  was  held 
not  to  be  a  counterclaim,  since  it  stated  no  cause  of  action 
against  the  plaintiff,  and  was,  in  fact,  tantamount  to  a  denial.^ 

§  767.  It  would  seem  that,  in  an  action  to  recover  the  posses- 
sion of  specific  chattels,  no  counterclaim  is  possible,  unless,  perhaps, 
equitable  relief  may  be  awarded  under  some  very  exceptional 
circumstances.  A  judgment  for  a  return  to  the  defendant 
of  the  chattels  in  controvers}^  is  not  a  counterclaim,  for  it  is 
expressly  provided  for  by  the  codes,  the  very  issue  in  the  action 
being.  Which  party  is  entitled  to  the  possession  ?  and  the  court 
by  its  judgment  awarding  the  possession,  or  the  value  in  money 
if  possession  cannot  be  given,  to  the  one  who  establishes  the  right ; 
if,  therefore,  the  plaintiff  had  taken  the  goods  into  his  own  cus- 

1  Daniell's  Chan.  PI.  and  Prac.  1647  ;  see  Armstrong  v.  Armstrong,  27  Iixl.  18*J ; 

Story's  Eq.  PL  §§  389,  397.  McNamara  v.  McNamara,  9  Abb.  Pr.  18, 

'^  Henry   v.    Henry,    3  Kobt.   614;   17  in  vvhioh  such  relief  was  granted  to  the 

Abb.  Pr.  411.  defendants. 

»  Diddell  v.   Diddell,  3  Abb.  Pr.  167  ;  •*  Englebreclit   v.   Rickert,    14    Minn. 

Griffin  v.  Griffin,  23  How.  Pr.  183  ;  Ter-  140. 
hune  V.  Terhune,  40  How.  Pr.   2o8  ;  but 


788  "  CIVIL   REMEDIES. 

tody  by  the  authorized  preliminary  proceedings,  they  or  their 
value  must  be  restored  when  the  action  fails.^  If  a  counterclaim 
can  be  interposed  in  this  suit,  it  must  be  either  (1)  a  demand  for 
money,  or  (2)  a  demand  for  the  possession  of  certain  other  and 
different  chattels,  or  (3)  a  demand  for  some  kind  of  equitable 
relief.  A  counterclaim  for  money  could  not  be  admitted  under 
the  principle  established  by  the  cases  that  the  relief  must  have 
some  connection  with  that  asked  for  by  the  j)l<i^i^tiff,  and  must 
tend  to  diminish  or  modify  it  in  some  manner.  A  judgment  for 
money  obtained  by  the  defendant  could  not  interfere  with  or  be 
counter  to  a  judgment  awarding  possession  of  chattels  to  the 
plaintiff.-  The  same  difficulties  attend  the  second  alternative. 
It  seems  impossible  that  when  the  plaintiff  seeks  to  recover  pos- 
session of  certain  specific  chattels,  the  defendant's  right  to  the 
possession  of  other  and  distinct  articles  could  arise  out  of  the 
same  transaction  which  is  the  foundation  of  the  plaintiff's  claim, 
or  could  be  connected  with  the  subject  of  the  plaintiff's  action. 
The  "  transactions,"  which  are  the  foundations  of  their  respective 
causes  of  action,  must,  from  the  very  nature  of  the  case,  be  dif- 
ferent. It  is  not  pretended  that  the  action,  or  the  cross-demand, 
is  based  upon  contract.  And,  finally,  the  relief  granted  to  the 
defendant  would  be  entirely  independent  of  that  conferred  upon 
the  plaintiff ;  the  two  would  be  complete  and  entire  each  by 
itself,  and  thus  there  would  be  in  effect  two  judgments,  not  modi- 
fying or  interfering  with  each  other,  and  not  relating  to  the  same 
subject-matter.  This  reasoning,  and  the  conclusion  reached  by  it, 
have  been  sustained  by  judicial  decision,  and  thus  seem  to  be 
supported  alike  by  principle  and  by  authorit}''.'^  It  is  possible, 
perhaps,  though  hardly  probable,  that  equitable  relief  ma}'^,  under 

1  See  DeLeyer  v.  Michaels,  5  Abb.  Pr.  defendant  might,   perhaps,   set   up  as  a 

203,  in  which  this  doctrine  was  affirmed,  counterclaim  an  independent  demand  due 

although  it  plainly  needs  no  authority  in  to  himself  from  the  plaintifl'  on  contract, 

its  support.  and  thus  diminish  or  extinguish  the  un- 

^  See  Moffat  v.  Van  Doren,  4  Bosw.  paid  balance  of  the  purchase  price.  Such 
609.  It  is  possible,  perhaps,  that  the  a  counterclaim  would  be  analogous  to  the 
plaintiff's  right  to  the  possession  might  similar  one  in  a  suit  by  a  vendor  of  land 
depend  upon  the  defendant's  failure  to  against  the  vendee,  which  was  sustained 
pay  a  stipulated  sum  of  money,  as  in  the  in  Cavalli  v.  Alleil,  57  X.  Y.  608. 
case  of  a  conditional  sale  and  delivery,  ^  Lovensohn  v.  Ward,  45  Cal.  8.  This 
when  the  property  was  to  remain  in  the  case  expressly  holds  that  a  claim  to  re- 
vendor  until  the  price  was  paid,  although  cover  the  possession  of  distinct  and 
possession  had  been  transferred  to  the  separate  chattels  cannot  be  set  up  as  a 
vendee.  In  an  action  brought  to  recover  counterclaim. 
the  chattels  under  such  circumstances,  the 


COUNTERCLAIM.  789 

certain  exceptional  circumstances,  be  recoverable  by  the  de- 
fendant in  an  action  similar  in  its  nature  and  object  to  the 
ancient  replevin  or  detinue.  Courts  of  equity,  however,  very  rarely 
interfered  in  controversies  concerning  the  title  to  and  possession 
of  chattels. 

B.    The  Particular  Questions  which  arise  under  the  First  Clause  or 
Branch  of  the  Statutory  Definition. 

§  768.  The  language  of  the  first  clause  or  branch  of  the 
definition,  which  is  found  in  all  the  codes  except  those  of  Indiana 
and  Iowa,  and  which  is  now  to  be  interpreted,  is  :  "A  cause  of 
action  arising  out  of  the  contract  or  transaction  set  forth  in  the 
complaint  [petition]  as  the  foundation  of  the  plaintiff's  claim, 
or  connected  with  the  subject  of  the  action."  Following  the 
order  of  this  language,  it  is  plain  that  three  different  subjects  are 
embraced  within  it,  and  the  whole  discussion  must  therefore  be 
separated  into  three  corresponding  divisions  :  namely,  1.  Cases 
in  which  the  cause  of  action  alleged  as  a  counterclaim  arises  out 
of  the  contract  set  forth  in  the  complaint ;  2.  Those  cases  in 
which  it  arises  out  of  the  transaction  set  forth  in  the  complaint  ; 
3.  Those  cases  in  which  it  is  connected  with  the  subject  of  the 
action.  A  complete  examination  of  these  three  subdivisions  re- 
quires a  construction  of  certain  particular  phrases  which  form  a 
part  of  the  statutory  definition.  These  are  («)  "  foundation  of 
the  plaintiff's  claim,"  or  when  is  a  contract  or  transaction  the 
foundation  of  the  plaintiff's  claim?  (J)  "arising  out  of,"  or 
when  does  a  cause  of  action  arise  out  of  a  contract  or  transac- 
tion ?  (c)  "  transaction  ;  "  (c?)  "  subject  of  the  action  ;  "  (g)  "  con- 
nected with,"  or  when  is  a  cause  of  action  connected  with  the 
subject  of  the  action  ?  Although  the  signification  of  all  these 
phrases  and  terms  must  be  determined,  for  upon  it  depends  the 
interpretation  to  be  given  to  the  entire  provision,  yet  it  will  be 
impracticable  to  take  them  up  and  examine  them  separately. 
Each  is  so  connected  with  the  others,  that,  in  ascertaining  their 
sense,  all  must  be  considered  together.  The  courts  have  invari- 
ably pursued  this  method  ;  and  their  opinions,  from  which  our 
interpretation  will  be  taken,  have  always  construed  the  statutory 
clause  as  a  whole,  and  have  not  attempted  to  distinguish  and 
analyze  its  constituent  parts.     I  shall  therefore  pursue  the  order 


790  CIVIL   REMEDIES. 

already  mentioned,  and  shall  discuss  the  three  subdivisions  into 
which  the  subject  has  been  separated,  and  in  so  doing  shall  inci- 
dentally define  the  legal  import  of  the  several  phrases  and  terms 
above  enumerated.  The  decisions  which  have  given,  or  have 
attempted  to  give,  a  construction  to  the  clause  are  numerous  and 
conflicting.  I  shall  freely  refer  to  these  cases,  citing  those  which 
represent  all  theories  and  schools  of  interpretation,  and  shall 
endeavor  to  collect  from  them  such  doctrines  and  practical  rules 
as  seem  to  be  correct  upon  princi23le  and  to  be  supported  by  the 
weight  of  authority.  As  a  preliminary  step  to  the  discussion  of 
the  three  subordinate  heads,  I  shall  quote  and  analj^ze  certain 
judicial  opinions  which  have  treated  of  the  clause  as  a  whole,  and 
have  proposed  general  rules  by  which  its  meaning  may  be  de- 
termined. Having  thus  ascertained  these  general  rules,  I  shall 
inquire  what  particular  cases  or  classes  of  cases  do  or  do  not  fall 
within  one  or  the  other  of  the  three  subdivisions  before  men- 
tioned. 

§  769.  G-eneral  Principles  of  Conslruction.  The  cases  now  to 
be  cited  throw  more  or  less  light  upon  the  meaning  of  the  statu- 
tory clause  as  a  whole,  and  also,  to  a  certain  extent,  upon  that  of 
the  special  phrases  and  terms  which  it  contains ;  and  from  them 
some  general  principles  of  interpretation  can  be  inferred.  The 
lower  floor  of  a  building  having  been  leased,  the  landlord  brought 
an  action  for  rent  due.  The  answer  was  pleaded  as  a  counter- 
claim. It  alleged  that  the  plaintiif  occupie_d  the  upper  floors  of 
the  building  ;  that  he  wantonly  and  negligently  suffered  water- 
pipes  to  get  out  of  repair  and  to  leak,  and  by  this  means  caused 
filthy  water  to  come  upon  the  defendant's  premises ;  also  that 
plaintiff  wantonly  and  negligently  caused  filthy  water  to  be 
thrown  from  his  rooms  upon  defendant's  premises  ;  that  by  these 
acts  damages  were  caused  to  the  defendant  in  an  amount  speci- 
fied, for  which  judgment  was  demanded  against  the  plaintiff.  A 
demurrer  to  this  answer  having  been  sustained,  the  defendant 
appealed  to  the  New  York  Court  of  Appeals,  which  affirmed  the 
decision  below.^     As  already  said  in  a  former  chapter,  the  diffi- 

i  Edgerton  i'.  Page,   20  N.  Y.  281,285.  payment  of  rent  upon  a  lease  of  tlie  de- 

From  the  opinion  of  that  court  the  follow-  mised   premises.      The    defendant's    de- 

ing  extracts  are  taken  :  "  The  demand  of  mands  arise  from  the  wrongful  acts  of  the 

the  defendant  set  out  in  the  answer  does  plaintiff  in  permitting  water  to  leak  and 

not  arise  out  of  the  contract  set  forth  in  run  into  the  premises,  and  in  causing  it 

the  complaint.     That  contract  is  for  the  to  be  thrown  upon  the  premises  and  prop- 


COUNTERCLAIM. 


791 


cnlty  in  arriving  at  the  true  interpretation  of  the  term  "  transac- 
action  "  lies  in  the  fact  that  it  had  no  strict  legal  meaning  before 
it  was  used  in  the  statute.  Being  placed  in  immediate  connection 
with  the  word  "  contract,"  and  separated  therefrom  by  the  dis- 
junctive "  or,"  one  conclusion  is  certain  at  all  events  ;  namely,  that 
the  legislature  intended  by  it  something  different  from  and  addi- 
tional to  "  contract."  The  most  familiar  rules  of  textual  interpre- 
tation are  violated  by  the  assumption  that  no  such  signification  was 
intended.  The  only  question  at  all  doubtful  is.  How  far  did  the 
law-makers  design  to  go,  and  how  broad  a  sense  did  they  attach 
to  the  word?  Is  it  to  be  used  in  its  widest  popular  meaning,  or 
must  it  be  narrowed  into  some  limited  and  technical  meaning, 
and  thus  be  made  a  term  of  legal  nomenclature  ?  While  in 
common  speech,  a  single  assault,  or  slander  or  lie,  would  not  be 
called  a  "transaction,"  j^et  the  whole  series  of  events  grouped 
around  such  a  central  fact,  and  connected  with  it,  would,  I  think, 
be  so  designated  in  popular  language,  and  a  fraudulent  scheme,  or 


erty  of  the  defendant.  These  acts  are 
entirely  independent  of  tlie  contract  of 
hiring,  upon  which  the  action  is  brought. 
The  demands  are  not  connected  witli  the 
subject  of  the  action ;  thai  is,  the  rent 
agreed  to  be  paid  for  t/ie  use  of  the  premises. 
The  defendant's  demands  are  for  a  series 
of  injuries  to  liis  property  deposited  upon 
the  premises,  and  for  impairing  the  value 
of  the  possession.  It  would  be  a  very 
liberal  construction  to  hold,  that,  in  an 
action  for  rent,  injuries  arising  from 
trespasses  committed  by  tlie  lessor  upon 
the  demised  premises  might  be  interposed 
as  a  counterclaim.  The  acts  of  the  plain- 
tiff in  this  case  are  of  a  similar  nature. 
They  are  either  acts  of  trespass  or  of 
negligence  from  which  the  injuries  to  the 
defendant  accrued.  Such  a  construction 
could  only  be  supported  by  the  idea  that 
the  subject  of  the  action  was  the  mhie  of 
the  use  of  the  premises.  But  where  there  is 
an  agreement  as  to  the  amount  of  the 
rent,  that  value  i?  immaterial.  Unless 
the  acts  of  the  plaintiff  amount  to  a  breach 
of  the  contract  of  hiring,  they  are  not 
connected  with  the  su])ject  of  the  action." 
Tlie  opinion  proceeds  to  show  that  the 
acts  complained  of  were  not  a  breach  of 
an  implied  covenant  of  quiet  enjoyment, 
and  concludes  :  "  There  is  nothing  in  the 


answer  in  this  case  tending  to  show  that 
any  of  the  acts  of  the  plaintiff  were  done 
under  any  claim  of  right  whatever.  They 
did  not,  therefore,  amount  to  a  breach  of 
the  contract  created  by  the  lease  ;  and 
the  injuries  sustained  by  the  defendant  do 
not,  therefore,  constitute  a  counterclaim 
connected  with  the  subject  of  the  action." 
To  tlie  same  effect  are  the  decisions  and 
the  general  interpretation  given  to  the 
clause  in  Mayor  v.  Parker  Vein  Co.,  12 
Abb.  Pr.  30J,  301,  per  Woodruff  J. ;  As- 
kins  V.  Hearns,  -3  Abb.  Pr.  184,  187,  per 
Emott  J.;  Schnaderbeck  v.  Worth,  8  Abb. 
Pr.  37,  38,  per  Ingraham  J. ;  Drake  v. 
Cockroft,  4  E.  D.  Smith,  34,  39,  per  Wood- 
ruff J. ;  Bogardus  r.  Parker,  7  How.  Pr. 
303,  305;  Barhyte  i:  Hughes,  33  Barb. 
320,  321,  per  Gierke  J.  These  cases  all 
give  a  verj'  narrow  meaning  to  the  term 
"transaction,"  and  incline  to  the  position 
that  a  cause  of  action  on  contract,  and 
one  for  tort,  or  two  causes  of  action  for 
tort,  can  never  be  said  to  arise  out  of  the 
same  transaction.  The  last  case  cited, 
Barhyte  v.  Hughes,  goes  so  far  as  to  hold 
that  "  transaction  "  and  "  contract  "  are 
synonymous ;  in  other  words,  that  n« 
cause  of  action  can  arise  out  of  a  "  trans- 
action "  unless  it  springs  from  a  contract. 


792  CIVIL    REMEDIES. 

in  other  words  a  cheat,  is  a  most  familiar  example  of  the  class  of 
events  to  which  the  term  is  usually  applied.  But  taking  the 
word  "transaction"  in  the  limited  sense  of  a  "negotiation  of 
business,"  or  some  other  similar  expression,  it  is  certainly  a  mis- 
take to  say  that  torts  cannot  arise  out  of  it  different  from  and 
adverse  to  the  plaintiff's  cause  of  action.  In  the  first  place,  it  is 
certain  that  a  cause  of  action  based  upon  the  plaintiff's  fraud 
may  arise  out  of  such  a  "transaction,"  for  it  may  spring  from  a 
contract  pure  and  simple.  In  the  second  place,  as  the  "  negotia- 
tion "  or  "  business  "  or  "  conduct  of  affairs  "  may  be  concerned 
with  property,  \^  ith  the  title  to  or  possession  of  land  or  chattels, 
it  is  easily  conceivable  that  a  distinct  cause  of  action  in  favor  of 
the  defendant  may  arise  out  of  a  tort  to  property  committed  by 
the  plaintiff  in  the  course  of  the  "  business"  or  "  negotiation  '" 
or  "  conduct  of  affairs,"  such  as  a  claim  for  the  taking  or  conver- 
sion of  goods,  or  for  a  trespass  to  or  wrongful  detention  of  land. 
Indeed,  the  difficulty  in  conceiving  of  distinct  torts  arising  from 
one  and  the  same  "  transaction  "  is  confined  almost  entirely  to 
the  cases  of  torts  to  the  person.  It  may  be  noticed  that  most  of 
the  decisions  already  cited,  in  which  the  possibility  of  distinct 
torts  having  such  a  common  legal  origin  is  denied,  directly  relate 
to  personal  wrongs  alone  ;  and  the  reasoning  of  the  courts  is 
extended  from  them  to  all  torts,  without  any  discrimination 
between  their  different  classes,  and  the  different  rules  which  may 
govern  them. 

§  770.  The  cases  thus  far  cited  have  all  been  decided  by  courts 
of  New  York  ;  I  shall  now  quote  a  few  which  have  arisen  in  other 
States.  A  complaint  alleged  that  the  plaintiff  delivered  certain 
flour  to  the  defendant  to  be  sold  on  commission,  but  that  the  latter 
had  converted  the  same,  or  the  proceeds  thereof,  to  his  own  use, 
and  prayed  judgment  for  its  value  as  damages.  The  answer  set  up 
the  following  facts  as  a  counterclaim  :  that  defendant  had  leased 
a  flouring-mill  to  the  plaintiff,  who  covenanted  in  the  lease  that 
he  would  furnisL  to  defendant  constant  employment  during  the 
continuance  of  the  term  for  two  teams  in  drawing  flour  to  Mil- 
waukee at  a  stipulated  sum  for  each  load,  and  further  covenanted 
that  all  the  flour  sent  from  the  mill  should  be  delivered  to  the 
defendant  at  Milwaukee,  to  be  sold  by  him  on  commission,  in 
pursuance  of  which  agreement  the  flour  mentioned  in  the  com- 
plaint was  in  fact  delivered  ;  that  the  plaintiff  had  neglected  and 


COUNTERCLAIM.  793 

refused  to  perform  both  of  his  said  covenants,  by  reason  of  which 
the  defendant  had  sustained  damages  to  a  specified  amount,  and 
judgment  was  demanded  for  such  sum.  A  demurrer  was  inter- 
posed to  this  counterclaim,  and  was  sustained  by  the  Supreme 
Court  of  Wisconsin.^  _  This  opinion,  quoted  at  large  in  the  note, 
necessarily  leads  to  the  conclusion  that  when  the  plaintiff  has  an 
election  to  adopt  one  or  the  other  of  two  forms  of  remedy,  one 
on  the  contract  for  the  breach  thereof,  and  the  other  in  tort  for 
a  conversion,  and  the  like,  the  ability  of  the  defendant  to  plead  a 
counterclaim  depends  upon  the  kind  of  action  selected  ;  in  other 
words,  the  propriety  of  the  counterclaim  does  not  depend  upon  the 
actual  facts  out  of  wliich  the  plaintiff's  remedial  rights  arise,  but 
upon  the  mere  nature  of  the  remedy  which  he  elects  to  enforce, 
and  of  the  means  which  he  employs  for  such  enforcement.  The 
result  would  be,  that  by  changing  the  kind  of  action  the  plaintiff 
may  cut  off  a  counterclaim  otherwise  admissible.  In  my  opinion, 
it  was  not  the  intention  of  the  legislature,  in  adopting  the  re- 
formed procedure,  that  the  essential  rights  of  defendants  should 
be  made  to  rest  in  this  manner  upon  the  form  of  remedy  chosen 
by  the  plaintiffs. 

1  Scheunert  v.  Kaehler,  23  Wise.  523,  is  the  tort  or  wrong  clone  in  the  conversion 
per  Dixon  C.  J. :  "  Assuming  that  a  coun-  of  the  money  ;  that  is  the  foundation,  and 
terclaim  maybe  pleaded  to  an  action  of  the  sole  foundation,  of  the  plaintiff's  claim 
tort,  —  a  question  not  necessary  to  be  de-  in  this  form  of  action ;  for,  unless  the 
cided,  —  and  assuming  also  that  no  objec-  money  was  unlawfully  converted,  the 
tion  exists,  because  the  contract  for  the  action  cannot  be  maintained."  Tlie 
breach  of  which  the  defendant  claims  counterclaim  was,  therefore,  held  to  be 
damages  is  not  set  forth  in  the  complaint,  inadmissible.  See  also  Akerly  v.  Vilas, 
but  that  the  counterclaim  would  be  ad-  21  Wise.  88,  109,  110,  which  holds  that 
missible,  if  at  all,  under  the  last  clause  of  the  counterclaim  must  be  directly  con- 
the  subdivision  as  being  connected  with  nected  with  the  subject  of  the  plaintiff's 
the  subject  of  the  action,  the  question  re-  action,  or  so  connected  that  a  cross-bill 
solves  itself  into  an  inquiry  as  to  the  ori-  would  have  been  sustained,  or  a  recoup- 
gin  of  the  cause  of  action  stated  in  the  ment  allowed  under  the  former  practice, 
complaint,  —  whether  it  arises  upon  the  when  it  is  claimed  to  fall  within  the  last 
contract  set  forth  in  the  answer,  or  origi-  clause  of  the  first  subdivision  ;  and  Vilas 
nates  in  facts  outside  of  and  disconnected  v.  Mason,  25  Wise.  310,  321,  where,  in 
with  that  contract.  If  the  former,  then  an  action  brouglit.  upon  a  contract,  —  on 
the  counterclaim  would  seem  to  be  clearly  a  lease  against  the  tenant, — a  counter- 
within  the  statute  ;  but,  if  the  latter,  then  claim  for  the  conversion  of  chattels  which 
it  would  not  be."  The  opinion  states  that  the  defendant  had  placed  upon  the  de- 
the  plaintiff  might  have  sued  upon  con-  mised  premises,  was  sustained,  on  the 
tract  for  a  violation  of  it,  or  might  have  ground  that  both  causes  of  action  arose 
sued  in  tort  for  the  wrong  done  him,  and  out  of  the  same  transaction  ;  also  Ains- 
that  he  had  chosen  the  latter  form  of  ac-  worth  v.  Bowen,  9  Wise.  348. 
tion,  and  adds  :  "  The  subject  of  the  action 


794  CIVIL  EEMEDIES. 

§  771.  In  a  case  already  quoted  under  a  former  head,  an 
action  brought  to  set  aside  a  deed  of  lands  on  account  of  the 
defendant's  fraud,  to  which  a  counterclaim  was  pleaded  denying 
the  fraud,  alleging  the  validity  of  the  conveyance,  the  plaintiff's 
continued  possession  of  the  land  and  pernancy  of  the  rents  and 
profits,  and  praying  a  judgment  awarding  possession,  quieting 
title  and  giving  damages,  the  Supreme  Court  of  Indiana  sustained 
the  answer,  and  granted  the  relief  demanded  by  the  defendant.^ 
The  same  court  has  discussed  the  legal  meaning  of  the  phrases 
"  arising  out  of"  and  "  connected  with,"  and  has  arrived  at  one 
general  principle,  at  least,  which  may  aid  in  determining  their 
application  to  all  particular  cases.  The  action  was  to  recover 
money  deposited  with  the  defendant  who  had  refused  to  deliver 
it  when  demanded.  The  defendant  pleaded  by  way  of  counter- 
claim, that  the  plaintiff  had  falsely  charged  him  with  stealing 
the  money  deposited,  and  had  slandered  him  by  uttering  such 
charge  in  the  presence  of  others,  and  prayed  judgment  for  dam- 
ages. In  sustaining  a  demurrer  to  this  answer  the  court  sug- 
gested a  rule  of  construction  which  may  be  followed  in  all 
cases.2     The  High  Court  of  Appeals  in  Kentucky  has  construed 

•  Woodruff  V.  Garner,  27  Ind.  4,  per  agreement.     The   plaintiff    averred   that 

Frazer  J.  :"  The  plaintiff's  cause  of  action  the  defendant  was  guilty  of  fraud  ;  and 

is  the  alleged  fraud  of  the  defendant  in  such  fraud   was  therefore  a  part  of  the 

procuring  the  deed  sought  to  be  rescinded,  transaction,  according  to   the   plaintiff's 

The  defendant's  cause  of  action  averred  version.     The  defendant's  cause  of  action 

in  the  counterclaim  does  not  arise  out  of  arose  out  of  the  same  transaction,  —  in 

the  plaintiff's  cause  of  action,  for  it  can-  fact,  it  was  the  entire  transaction,  except 

not  even  exist  consistently  with  it.     If  the  element  of  fraud,  whicii  he  asserted 

the  fraud  alleged  by  the  plaintiff  was  per-  did  not  exist.     No  plainer  illustration  of  a 

petrated,  then  the  defendant  cannot  have  cause  of  action  arising  out  of  the  transac- 

any  right  of  action  whatever.     So  tlie  de-  tion  which  was  also  the  foundation  of  the 

fendant  found  it  necessary  to  deny  the  plaintiff's  claim  could  be  imagined, 
fraud.     But  the  deed  sought   to   be   set  -  Conner  v.  Winton,  7  Ind.  523.    "  The 

aside  constitutes  part  of  the  transaction  question  is,  What  is   the   legal  effect  of 

upon  which  the  plaintiff  and  the  defend-  the  words  'arising  out  of  or  'connected 

ant  both  rely  for  a  recover_v.     It  is  the  with '  ?     Do  they  refer  to  those  matters 

link   which  forms  the  direct  connection  which  have  an  immediate  connection  with 

between  the  two  diverse  causes  of  action,  the  transaction?  or  do  they  include  also 

So  the  counterclaim  for  possession  is  con-  those  which  have  a  remote  relation  with 

nected  witli    the  cause  of  action  of  the  it  by  a  chain  of  circumstances  which  were 

plaintiff  directlj%  and  is  therefore  author-  not  had  in  view  at  its  inception  ?     Sup- 

ized  by  the  statute."     The  "transaction"  pose   C.  [the  defendant]  had  beaten  W. 

set  forth  in  the  complaint  was  not  simply  [the   plaintiff]    for   uttering   the  slander, 

the  alleged  fraud  :  it  was  the  entire  busi-  could  AV.  have  replied  the   damages  oc- 

ness  or  matter  of  agreeing   to   sell   and  casioned  by  the  battery  to  tiiose  resulting 

purchase  the  land,  and  of  executing  and  from  the  slander  1   and  could  the  parties 

delivering  the  deed  in  pursuance  of  such  have  settled  all  their  quarrels  in  the  ac- 


COUNTERCLAIM.  795 

the  phrases  "  arising  out  of  the  transaction  "  and  "  connected 
with  the  subject  of  the  action "'  in  a  very  liberal  and  broad  man- 
ner. An  action  was"  brought  on  an  injunction  bond  given 
by  T.  and  sureties.  The  plaintiff  had  originally  commenced 
proceedings  to  obtain  possession  of  a  farm  in  the  occupancy  of  T. 
T.  had  thereupon  brought  an  equitable  suit  to  restrain  these  pro- 
ceedings, had  obtained  a  preliminary  injunction,  and  had  given 
the  bond  in  question.  The  suit  being  dismissed,  this  action  was 
brought  on  the  bond,  the  plaintiff  therein  claiming  damages  for 
being  kept  out  of  possession  of  the  farm  by  means  of  the  injunc- 
tion during  the  continuance  of  the  suit.  The  defendant  T. 
pleaded  a  counterclaim,  alleging  that  notwithstanding  the  injunc- 
tion, and  before  it  was  dissolved,  the  plaintiff — the  defendant  in 
the  injunction  suit  —  wrongfully  took  possession  of  the  land  and 
seized  the  crops  thereon,  and  converted  the  same  to  his  own  use, 
and  demanding  judgment  for  the  damages  thus  caused.  At  the 
trial  the  defendant  had  a  verdict  which  was  sustained  on  appeal.^ 
§  772.  The  New  York  Court  of  Appeals  has  passed  upon  the 
question,  How  far  the  form  of  the  action  chosen  by  the  plaintiff, 
when  he  has  an  election  to  sue  for  a  tort  or  on  a  contract,  can 
affect  the  defendant's  right  to  interpose  a  counterclaim,  and  has 
declared  that  it  can  produce  no  effect ;  if  the  defendant  would 
have  been  able  to  plead  a  counterclaim  to  a  cause  of  action  upon 
an  implied  promise,  growing  out  of  a  certain  state  of  facts,  the 

tion  to  recover  the  money?     We  do  not  set  forth  in  the  petition,  or  be  connected 

think  tliat  the  statute  contemplates  any  witli  the   subject  of  the  action.     As  the 

such   practice.     A   counterclaim   Is    that  petition  states  the  occupation  of  the  land 

which  might  have  arisen  out  of,  or  could  by  Mrs.  T.  [the  present  defendant  and  the 

have  had  some  connection  with,  the  orig-  plaintiff  in  the   equity   suit]    during  the 

inal   transaction  in  the  view  of  the  parties,  pendency   of  the  injunction,  and  claims 

and  which,  at  the  time  the  contract  was  damages  therefor,  any  interference  by  the 

made,  they  could  have  intended  might,  plaintiff  which  rendered  sucli  occupation 

in   some  event,  give   one  party  a  claim  less  profitable  or  less  valuable  to  the  oc- 

against  the  other  for  compliance  or  non-  cupant  constituted  a  cause  of  action  aris- 

compliance  with  its  provisions.     We  refer  ing  out  of  the  transaction  set  forth  in  the 

in  this  connection,  of  course,   to  actions  petition,  and  is  connected  with  the  plain- 

ex  contractu  only.     About  actions  for  tort  tiff's  cause  of  action ;    and,  although   it 

it  is  not  necessary  to  say  any  thing  at  amount  to  a  trespass  or  other  tort,  it  may 

present."  constitute  the  ground  of  a  counterclaim." 

I  Tinsley  v.  Tinsley,  15  B.  Mon.  454,  In  Wadley  v.   Davis,  63  Barb.  500,  the 

459,  per  Marshall  J. :  "It  is  not  required  same   principle   was    approved    and    fol- 

that     the    counterclaim    itself    shall    be  lowed  ;  and  a  demand  arising  from  tort 

founded  in  contract,  or  arise  out  of  the  to  property  was  held  to  be  a  proper  coun- 

contract  set  forth  in  the  petition  ;  but  it  is  terclaim  in  an  action  on  contract, 
sufficient  that  it  arise-out  of  the  transaction 


796  CIVIL    REMEDIES. 

plaintiff  cannot,  by  adopting  an  action  in  form  for  a  tort  under 
the  same  circumstances,  cut  off  or  abridge  this  substantial  privi- 
lege ;  the  chief  design  of  the  new  procedure  was  to  subordinate 
form  to  substance  and  not  substance  to  form.  An  action  was 
brought  to  compel  the  delivery  of  certain  bills  of  lading,  the 
plaintiffs  alleging  that  the  shipment  was  on  their  account,  and 
that  the  goods  and  the  bills  of  lading  thereof  belonged  to  them- 
selves, and  were  wrongfully  detained  by  the  defendants.  The 
answer  put  these  averments  in  issue,  and  also  set  up  by  way  of 
counterclaim  that,  since  the  commencement  of  the  action,  the 
plaintiffs  had  wrongfully  taken  possession  of  the  goods,  and  had 
converted  the  same  to  their  own  use,  and  prayed  judgment 
for  the  value  thereof.  The  court  pronounced  the  defendants' 
demand  to  be  a  cause  of  action  plainly  arising  out  of  the  trans- 
action set  forth  in  the  complaint,  or  at  least  connected  with  the 
subject  of  the  action,  being,  as  it  was,  for  the  value  of  the  very 
goods  which  the  jDlaintiffs  sought  to  reach,  and  added  the  follow- 
ing :  "I  do  not  think  it  lies  with  the  plaintiffs  to  allege  that 
their  taking  was  a  mere  tort  for  the  purpose  of  defeating  the 
counterclaim.  And,  even  if  an  action  sounding  in  tort  might  be 
maintained  by  the  defendants  for  the  taking,  I  am  still  of  opin- 
ion that  the  cause  of  action  for  the  value  of  the  goods  would 
constitute  a  good  counterclaim  in  such  a  case  as  this."  ^ 

§  773.  I  shall  end  this  particular  branch  of  the  subject  by 
quoting  from  a  very  able  and  instructive  decision  made  by  the 
Superior  Court  of  New  York  City,  in  which  the  statutory  defini- 
tion was  fully  analyzed  as  to  all  its  parts,  and  an  attempt  was 
made  to  reach  the  basis  of  a  true  interpretation.  The  action 
was  brought  to  recover  damages  for  the  wrongful  conversion  of 
certain  bills  of  exchange.  The  plaintiffs  had  been  the  owners 
of  the  bills  which  were  drawn  by  divers  persons  on  differ- 
ent payees  ;  fhey  indorsed  the  same  and  delivered  them  to 
the  Ohio  Life  Insurance  and  Trust  Company,  for  the  purpose  of 
collection  only  ;  this  company  transferred  them  to  the  defendants, 
who  now  retain  them  ;  it  was  alleged  that  the  defendants  took 
the  bills  with  notice  of  all  these  facts,  and  were  Jiot  holders  in 

1  Tliompson  v.  Kessel,  30  N.  Y.  383,  authorities,   by   the    Supreme    Court   of 

389,  per  Jolinson  J.     The  same  doctrine  Missouri,    in    Gordon   v.  Bruner,  49  Mo. 

has  been  recently  approved  and  enforced,  570,  571,  per  Bliss  J.,  supra,  §  5G9  n. 
after   an  exhaustive  examination  of  the 


COUNTERCLAIM. 


797 


good  faith  for  value.  The  complaint  stated  a  demand  and 
refusal,  an  unlawful  detention  and  conversion,  and  demanded 
judgment  for  the  value  of  the  securities  as  damages  ;  it  was 
strictly  for  an  alleged  tort.  The  answer  was  pleaded  as  a  coun- 
terclaim. It  set  up  the  drawing  of  the  bills,  their  indorsement 
by  the  plaintiffs,  their  delivery  to  the  Ohio  Trust  Company,  their 
transfer  to  the  defendants  for  full  value  and  without  notice,  de- 
mand of  payment,  non-payment  and  notice  thereof  to  the  plain- 
tiffs, and  prayed  judgment  against  the  plaintiffs  as  indorsers  for 
the  amount  due  on  the  drafts.  In  other  words,  it  was  like  an 
ordinary  complaint  in  an  action  by  the  indorsees  against  the  in- 
dorsers to  recover  the  sum  due  on  a  bill  or  note.  A  motion  to 
strike  out  this  counterclaim  was  denied  at  the  special  term,  and 
the  plaintiffs  appealed  to  the  general  tewn,  which,  after  stating 
the  facts  and  the  questions  presented  by  the  record,  and  recit- 
ing the  two  subdivisions  of  §  150  of  the  New  York  Code,  pro- 
nounced the  opinion  found  in  the  note.^ 


1  Xenia  Branch  Bank  v.  Lee,  7  Abb. 
Pr.  372,  389,  per  Woodruff  J. :  "  This 
division  of  the  section  shows  that  there 
may  be  a  counterclaim  ichen  the  action 
itself  does  not  arise  on  contract ;  for  the 
second  clause  is  expressly  confined  to 
actions  arising  on  contract,  and  allows 
counterclaims  in  such  cases  of  any  other 
causes  of  action  also  arising  on  contract ; 
and  this  may  embrace,  probably,  all  cases 
heretofore  denominated  "  set-off,"  legal 
or  equitable,  and  any  other  legal  or  equi- 
table demand  liquidated  or  unliquidated, 
whether  within  the  proper  definition  of 
set-off  or  not,  if  it  arise  on  contract.  Glea- 
son  V.  Moen,  '2  Duer,  642.  The  first  sub- 
division would  therefore  be  immeaning 
as  a  separate  definition,  if  it  neither  con- 
templated cases  in  which  the  action  was 
not  brought  on  the  contract  itself  in  the 
sense  in  which  these  words  are  ordinarily 
used,  nor  counterclaims  which  did  not 
themselves  arise  on  contract.  The  first 
subdivision,  by  its  terms,  assumes  that  the 
plaintiff's  complaint  may  set  forth,  as  the 
foundation  of  the  action,  a  '  contract'  or 
a  '  transaction.'  The  legislature,  in  using 
both  words,  must  be  assumed  to  have 
designed  that  each  should  have  a  mean- 
ing ;  and,  in  our  judgment,  their  construc- 
tion should  be  according  to  the  natural  and 


ordinari/ signijication  of  the  terms.  In  this 
sense,  every  contract  may  be  said  to  be 
a  transaction ;  but  every  transaction  is 
not  a  contract.  Again,  the  second  sub- 
division having  provided  for  all  counter- 
claims arising  on  contract,  and  all  actions 
arising  on  contract,  no  cases  can  be  sup- 
posed to  which  the  first  subdivision  can 
be  applied,  unless  it  be  one  of  three 
classes  ;  viz.,  1st.  In  actions  in  which  a 
contract  is  stated  as  the  foundation  of  the 
plaintift"s  claim,  counterclaims  which  arise 
out  of  the  same  contract ;  or,  2d.  In  actions 
in  which  some  transaction,  not  being  a 
contract,  is  set  forth  as  the  foundation  of 
the  plaintiff's  claim,  counterclaims  which 
arise  out  of  the  same  transaction  ;  or,  3d. 
In  actions  in  which  either  a  contract,  or  a 
transaction  which  is  not  a  contract,  is  set 
forth  as  the  foundation  of  the  plaintiff's 
claim,  counterclaims  which  neither  arise 
out  of  the  same  contract  nor  out  of  the 
same  transaction,  but  which  are  connected 
with  the  subject  of  the  action."  After 
some  discussion  upon  the  difference  be- 
tween the  provision  in  the  first  subdivi- 
sion and  that  in  the  second  subdivision 
in  reference  to  actions  and  counterclaims 
based  upon  contract,  in  which  he  points 
out,  that,  in  the  former,  the  language  is 
"  contract  which  is  the  foundation  of  the 


798 


CIVIL    REMEDIES. 


§  77-4.  While  the  foregoing  decisions  do  not  furnish  any  general 
formulas  for  determining  in  all  cases  what  is  the  "  transaction" 
set  forth  in  the  plaintiff's  petition  or  complaint,  or  what  is  the 
"  subject  of  the  action,"  or  when  the  defendant's  cause  of  action 
"  arises  out  of  the  transaction  set  forth  in  the  complaint,"  or 
when  it  is  "  connected  with  the  subject  of  the  action,"  they  do 
throw  some  light  upon  the  true  intent  of  the  legislature  in 
using  these  phrases,  and  they  settle  some  principles  which,  when 
properly  applied,  may  assist  in  constructing  the  universal  rules  so 
much  needed  by  the  profession  and  the  bench.  It  is  very  evident 
that  there  has  existed  in  the  minds  of  judges  a  radical  difference  of 
opinion  in  respect  to  the  import  of  the  controlling  terms  of  the  stat- 
utory definition,  and  especially  in  respect  to  the  word  "  transac- 
tion." One  school  would  narrow  its  meaning  so  as  to  deprive  it  of 
all  separate  significance  in  the  clause  where  it  is  found.     They 


plaintiff's  claim,"  and,  in  the  latter,  "  ac- 
tions arisitu/  on  contract,"  and  that  tiiis 
language  appropriately  applies,  in  the 
first  subdivision,  to  certain  classes  of  ac- 
tions in  which  a  contract  is  the  foundation 
of  the  plaintiff's  claim,  although  the  ac- 
tion does  not  strictly  arise  on  the  contract, 
and,  in  the  second  subdivision,  to  all  those 
actions  which  are  strictly  brought  on  the 
contract,  —  the  learned  judge  proceeds 
with  the  main  subject :  "  But,  secondly,  the 
subdivision  authorizes  in  actions  in  wiiich 
a  transaction,  not  being  a  contract,  is  set 
forth  as  the  foundation  of  the.  plaintiflf's 
claim,  counterclaims  which  arise  out  of 
the  same  transaction.  This,  we  think, 
includes  the  case  before  us.  The  '  trans- 
action '  here  in  question  may  either  in- 
clude the  history  of  the  bills,  so  far  as  the 
title  of  the  plaintiffs  or  defendants  depends 
upon  that  history  ;  or  the  '  transaction  ' 
may,  perhaps,  be  confined  to  the  manner 
and  circumstances  of  the  transfer  to  the 
defendants."  The  opinion  recapitulates 
the  facts  of  the  case,  and  shows,  that, 
giving  to  the  term  "  transaction  "  the  first 
of  tliese  two  meanings,  the  defendant's 
cause  of  action  arose  out  of  it,  and  adds 
a  very  important  suggestion  which  had 
been  overlooked  in  some  of  the  decisions 
heretofore  cited  :  "  Some  facts  enter  into 
the  plaintiff's  case  which  do  not  enter 
into  the  defendant's  case,  and  vice  versa. 
But,  from  tlie  nature  of  the  subject,  this 
must  always  be  so.     The  legislature  were 


not  so  absurd  as  to  mean  that  the  defend- 
ant might  counterclaim  when  the  very 
facts  alleged  by  him,  with  all  their  partic- 
ulars, were  identical  with  those  alleged  by 
the  plaintiff.  .  .  .  So,  if  the  transaction 
set  forth  as  the  foundation  of  the  plaintiff's 
claim  be  regarded  as  more  narrow,  and  as 
being  the  transfer  of  the  bills  by  the  Ohio 
Trust  Company  to  the  defendants,  then, 
as  before,  the  defendants'  counterclaim 
arises  out  of  the  same  transaction ;  to 
wit,  the  transfer.  The  circumstances 
tiiat  the  defendants  have  to  superadd  an 
allegation  of  demand,  protest,  and  notice 
to  the  plaintiffs  as  indorsers,  does  not 
alter  the  case.  This  added  fact  is  only 
a  means  of  showing  how  the  defendants' 
cause  of  action  arises  out  of  the  transac- 
tion relied  upon,  and  is  made  complete." 
Finally,  Mr.  Justice  Woodruff  reaches 
the  conclusion,  that,  even  if  the  defend- 
ants' cause  of  action  does  not  arise  out  of 
the  "  transaction  "  set  forth  in  the  com- 
plaint, it  "  is  direct!}'  and  immediately 
connected  with  the  subject  of  the  action. 
The  subject  of  the  action  is  eitlier  the 
right  to  tlie  possession  of  the  bills  of  ex- 
change, or  it  is  the  bills  themselves.  The 
defendants'  counterclaim  is  not  only  con- 
nected with,  but  is  inseparable  from, 
either  or  both.  The  object  of  tlie  action 
is  damat/es;  but  the  subject  is  the  bills  of 
exchange,  or  the  right  to  their  posses- 
sion." 


COUNTERCLAIM.  799 

would  make  it  either  synonymous  with  "contract,"  or  would  regard 
it  as  being  merely  the  very  cause  of  action  which  the  plaintiff  has 
alleged  in  his  pleading  as  the  ground  of  recovery.  The  other 
school  give  to  the  word  a  broader  and  more  comprehensive  mean- 
ing. Ex  vi  termini,  it  imports  something  different  from  "  con- 
tract," and  is  to  be  taken  in  its  ordinary  and  popular  sense.  It 
is  more  extensive  than  "  cause  of  action  "  or  "  subject  of  the 
action  ;  "  for  out  of  it  the  defendant's  "  cause  of  action  "  is  said 
to  "  arise,"  and  it  is  also  to  be  set  forth  in  the  complaint  or  peti- 
tion, not  as  the  "  cause  of  action,"  but  as  the  "•  foundation  "  of 
the  plaintiff's  claim.  It  must,  therefore,  be  something  —  that 
combination  of  acts  and  events,  circumstances  and  defaults  —  which, 
viewed  in  one  aspect,  results  in  the  plaintiff  ^s  right  of  action,  and, 
viewed  in  another  aspect,  results  in  the  defendants  right  of  action. 
As  these  two  opposing  rights  cannot  be  exactly  the  same,  it  fol- 
lows that  there  may  be,  and  generally  must  be,  acts,  facts,  events, 
and  defaults  in  the  transaction  as  a  whole,  which  do  not  enter 
into  each  cause  of  action,  but  are  confined  to  one  of  them  alone. ^ 
§  775.  In  regard  to  what  constitutes  the  "  subject  of  the 
action,"  there  is  no  agreement  whatever  in  the  judicial  opinions. 
Some  of  them  have  treated  it  as  identical  with  the  "  cause  of 
action,"  which  is  plainly  incorrect.  As  I  have  already  shown,  the 
"  cause  of  action  "  consists  in,  1st,  the  primary  right,  and  the  facts 
from  which  it  flows  ;  and,  2d,  ,the  breach  of  that  right,  and  the 
facts  constituting  such  breach.  These  taken  together  create  a 
remedial  right,  and  are  the  cause  of  action.  The  remedy  itself  is 
certainly  the  "  object  "  of  the  action.  The  "  subject  "  is  cer- 
tainly not  the  cause  of  action  ;  but  when  Ave  have  reached  this 
conclusion,  we  find  very  little  judicial  aid  in  arriving  at  any 
other  and  more  affirmative  one.  Some  judges  have  said  that  in 
all  possessory  actions,  and  all  actions  to  establish  property,  the 
"  subject  of  the  action  "  denotes  the  things  to  assert  a  right  over 

1  Tlie  reader  should  consult  the  analy-  repeat  in  the  text  the  former  full  discus- 
sis  of  cases,  and  the  discussion  in  relation  sion ;  but  it  is  plain  tliat  the  decisions 
to  the  same  word  given  in  a  former  cliap-  there  cited,  and  the  results  there  reached, 
ter  (Chap.  III.,  Sec.  2).  The  language  apply  with  equal  force  to  the  questions 
of  the  clause  there  under  examination  is  now  under  consideration.  There  is  an 
almost  identical  with  that  of  the  present  evident  connection  between  the  subject 
passage ;  and  the  same  meaning  must,  of  of  uniting  causes  of  action  in  one  com- 
course,  be  attributed  to  tlie  words  "  trans-  plaint,  and  the  uniting  them  in  one  con- 
action  "  and  "  subject  of  the  action  "  in  troversy,  although  they  are  set  forth  in 
both   sections  of  the  statute.     I   do   not  the  adverse  pleadings. 


800  CIVIL   REMEDIES. 

which,  or  to  obtam  the  possession  of  which,  the  action  is  brought, 
as  the  land  in  ejectment  and  in  many  equity  suits,  or  the  chat- 
tels in  replevin.  Some  have  said  that  the  "  subject  "  denotes 
the  same  in  other  classes  of  actions,  not  brought  to  recover  pos- 
session or  expressly  to  establish  title,  but  in  which,  nevertheless, 
the  plaintiff's  right  to  recover  is  based  upon  his  property  in  a 
specific  thing,  as  for  the  conversion  of  chattels,  or  for  trespass  to 
lands  or  chattels  ;  while  some  have  applied  the  same  principle  to 
actions  not  based  upon  any  alleged  property  of  the  plaintiff  in  a 
specific  thing,  and  have  gone  to  the  extent  of  holding  that,  in 
actions  upon  contract  to  recover  the  debt  due  or  damages  for  the 
non-performance  thereof,  the  "  subject"'  is  the  very  contract  itself, 
—  the  instrument  in  suit,  as,  for  example,  in  an  action  upon  a 
bill  or  note,  the  "  subject,"  according  to  this  view,  would  be  the 
bill  or  note  sued  upon.  Other  judges  have  said  that  the  "  sub- 
ject "  is  the  right  which  is  sought  to  be  enforced  in  the  action ; 
meaning  thereby  the  prhnary  right,  which  has  been  infringed 
upon  as  distinguished  from  the  remedial  right,  and  from  the  delict 
and  the  remedy.  Thus  in  the  case  last  quoted,  which  was  an 
action  for  the  conversion  of  bills,  Mr.  Justice  Woodruff  declared 
that  the  subject  was  either  the  bills  themselves,  or  the  plaintiff's 
original  right  to  their  possession.  It  would,  as  it  seems  to  me, 
be  correct  to  say  in  all  cases,  legal  or  equitable,  that  the  "  subject 
of  the  action  "  is  the  plaintiff's  main  primary  rigJit  which  has 
been  broken,  and  by  means  of  whose  breach  a  remedial  right 
arises.  Thus,  the  right  of  property  and  possession  in  ejectment 
and  replevin,  the  right  of  possession  in  trover  or  trespass,  the 
right  to  the  money  in  all  cases  of  debt,  and  the  like,  would  be 
the  "  subject"  of  the  respective  actions.  Although  in  a  certain 
sense,  and  in  some  classes  of  suits,  the  things  themselves,  the 
land  or  chattels,  may  be  regarded  as  the  "  subject,"  and  are  some- 
times spoken  of  as  such,  yet  this  cannot  be  true  in  all  cases  ;  for 
in  many  actions  there  is  no  such  specific  thing  in  controversy  over 
which  a  right  of  property  exists.  The  primary  right,  however, 
always  exists,  and  is  always  the  very  central  element  of  the  con- 
troversy around  which  all  the  other  elements  are  grouped,  and 
to  which  they  are  subordinate.  In  possessory  and  proprietory 
actions,  this  right,  which  will  then  be  always  one  of  property  or 
of  possession,  will  be  intimately  associated  with  the  specific  thing 
itself  which  is  the  object  of  the  right ;  but  this  relation  is  not  and 


COUNTERCLAIM.  801 

cannot  be  universal.  It  seems,  therefore,  more  in  accordance 
with  the  nature  of  actions  and  more  in  harmony  with  the  lan- 
guage of  the  statute  to  regard  the  ''  subject  of  the  action  "  as 
denoting  the  plaintiff 's  principal  primary  right  to  enforce  or  main- 
tain which  the  action  is  brought,  than  tO  regard  it  as  denoting 
the  specific  thing  in  regard  to  which  the  legal  controversy  is  car- 
ried on.  In  this  manner  alone  can  we  arrive  at  a  general  rule 
applicable  to  all  possible  cases,  and  the  rule  thus  reached  fully 
satisfies  all  the  requirements  of  the  legislative  language,  and  can 
be  invoked  in  all  classes  of  actions.  While  I  suggest  and  adopt 
this  meaning  of  the  term  "  subject,"  I  freely  concede  that  no 
decision,  so  far  as  I  have  discovered,  pronounces  this  interpreta- 
tion to  be  the  only  one  admissible  ;  many  cases  sanction  it,  none 
directly  reject  it ;  but  none,  on  the  other  hand,  have  gone  so  far 
as  to  declare  in  its  favor  to  the  exclusion  of  all  other  meanings. 
The  construction  proposed,  as  it  has  been  judicially  approved  in 
many  instances,  would  remove  all  doubt  and  conflict  of  opinion, 
and  would  furnish  a  simple  and  practical  rule  of  universal  appli- 
cation. 

§  776.  In  respect  to  the  phrase  "  connected  with  "  the  subject 
of  the  action,  one  rule  may  be  regarded  as  settled  by  the  deci- 
sions, and  it  is  recommended  by  its  good  sense,  and  its  conven- 
ience in  practice.  The  connection  must  be  immediate  and  direct. 
A  remote,  uncertain,  partial  connection  is  not  enough  to  satisfy 
the  requirements  of  the  statute.  The  criterion  proposed  by  the 
Supreme  Court  of  Indiana  in  one  of  the  cases  cited  is  as  certain 
and  practical  as  the  nature  of  the  subject  admits,  and  only  needs 
to  be  known  to  be  universally  accepted.  It  is,  that  the  connec- 
tion must  be  such  that  the  parties  could  be  supposed  to  have 
foreseen  and  contemplated  it  in  their  mutual  acts  ;  in  other  words, 
that  the  parties  must  be  assumed  to  have  had  this  connection 
and  its  consequences  in  view  Avhen  they  dealt  with  each  other. 
I  now  pass,  according  to  the  order  already  stated,  to  the  three 
branches  into  which  the  subject-matter  is  naturally  separated. 

I.  Cases  in  zvhich  the  Cause  of  Action  alleged  as  a  Counterclaim 
arises  out  of  the  Contract  set  forth  in  the  Complaint  or  Petition 
as  the  Foundation  of  tlie  Plaintiff's  Claim. 

§  777.  Mr.  Justice  Woodruff,  in  the  opinion  last  quoted,  de- 
clares that  the  second  subdivision  of  the  definition  was  intended 

51 


802  CIVIL   REMEDIES. 

to  embrace  all  cases  in  wliicli  the  plaintiff's  cause  of  action  arises 
on  contract,  and  the  defendant's  counterclaim  also  arises  on  con- 
tract, either  the  same  or  another,  and  that  the  clause  of  the  first 
subdivision  above  mentioned  was  designed  to  include  only  those 
cases  in  which  the  contract  is  set  forth  by  the  plaintiff  as  the 
foundation  of  his  action,  although  the  action  itself  is  not  on  the 
contract.     This   is,   I    think,   attributing  too  much   nicety   and 
precision   of   thought   to    the   legislature,  and   assumes  that   it 
would  never  enact  any  duplicate  provisions.     The  first  subdi- 
vision no  doubt  covers  the  cases  mentioned  by  Judge  Woodruff, 
but  it  also  embraces  many  others.     Undoubtedly,  the  codifiers 
and  the  legislature  in  drawing  and  adopting  the  first  subdivision 
had  in  mind  the  doctrine  of  recoupment,  and  so  framed  the  lan- 
guage that  it  should  include  cases  of  recoupment  and  all  others, 
leo'al  and  equitable,  analogous  to  it,  —  that  is,  all  cases  in  which 
the  right  of  action  of  the  plaintiff  and  that  of  the  defendant  arise 
from  the  same  contract.    It  describes,  therefore,  not  only  the  special 
and  infrequent  classes  of  instances  in  which  the  plaintiff's  claim  is 
not  technically  on  the  contract,  although  a  contract  is  set  forth  as 
its  foundation,  but  also  all  other  instances  in  which  the  plaintiff's 
action  is  strictly  brought  on  the  contract,  while  the  defendant's 
counterclaim  in  both  cases  arises  from  the  same  contract.     The 
central  idea  of  this  subdivision  then  is,  that  one  and  the  same 
contract  is  the  basis  of  both  parties'  demand  for  relief.     Passing 
to  the  second  subdivision,  the  central  thought  is  equally  plain, 
viz.,  that  the  plaintiff's  cause  of  action,  and  that  of  the  defend- 
ant, spring  from  different  contracts ;  in  other  words,  the  codifiers 
and  the  legislature  had  in  mind  the  familiar  case  of  set-off,  both 
legal  and  equitable.     But,  in  framing  the  clause,  the  language 
was  made  broader  than  was  necessary,  and  it  actually  covers  all 
cases  in  which  the  plaintiff's  cause  of  action  is  on  contract,  and 
the  defendant's  counterclaim  is  also  on  contract  the   same   or 
another.     The  law-makei-s  have  thus  in  fact  given  us  two  provi- 
sions authorizing  a  counterclaim  arising  from  the  same  contract 
as  that  from  which  the  plaintiff's  cause  of  action  results,  but 
only   one    authorizing   a   counterclaim   springing   from    another 
contract  than   the  one    upon   which    the    plaintiff's    demand   is 
based.     The  same  case  may,  therefore,  be  often  referred  to  both 
of  these  subdivisions ;  but  I  shall,  following  what  seems  to  be 
the  plain  design  of  the  statute,  consider  under  the  first  all  those 


COUNTERCLAIM.  803 

instances  in  which  the  demands  of  both  parties  arise  from  the 
same  contract,  and  postpone  to  the  second  all  those  in  which 
each  demand  arises  from  a  separate  contract.  That  this  is  the 
correct  construction  of  the  whole  provision  is  made  certain, 
when  we  turn  to  the  form  which  it  assumes  in  all  the  codes 
which  constitute  the  second  group  according  to  the  classification 
stated  at  the  commencement  of  this  section. 

§  778.  It  may  be  stated  as  a  general  proposition  that  in  all 
actions  to  recover  a  money  judgment,  debt  or  damages,  upon  a 
contract,  or  where  a  contract  is  set  forth  as  the  foundation  of 
the  plaintiff's  claim,  a  counterclaim  of  a  money  judgment  against 
the  plaintiff  for  his  breach  or  non-performance  of  any  stipulations 
of  the  same  agreement,  or  for  his  fraud  in  procuring  the  same  to 
be  entered  into,  is  admissible.  The  following  examples  will  illus- 
trate this  proposition.  In  an  action  for  rent  brought  by  the 
lessor  or  by  the  grantee  of  the  reversion  against  the  lessee  or  an 
assignee  of  the  term,  where  the  lease  contains  a  covenant  to 
repair  on  the  part  of  the  landlord,  damages  sustained  by  the  de- 
fendant from  a  breach  of  this  covenant  may  be  alleged,  and 
recovered  as  a  counterclaim.  The  damages  in  one  such  case, 
where  the  demised  premises  were  a  hotel,  were  held  to  be  the 
sum  paid  by  the  defendant  for  making  the  necessary  repairs, 
together  with  the  amount  of  loss  occasioned  by  the  inability  to 
use  certain  rooms  in  the  hotel  while  they  were  out  of  repair.^ 
In  an  action  by  the  buyer  against  the  seller  to  recover  damages 
for  the  non-delivery  of  goods  bargained  and  sold,  the  latter  may 
counterclaim  the  unpaid  price  of  that  part  of  the  g(,ods  already 
delivered  under  the  contract.^  When  sued  for  the  price  of  two 
articles  sold  under  one  agreement,  the  defendant  may  set  up  and 
recover  damages  resulting  from  the  fraudulent  representations  of 
the  plaintiff  in  respect  to  one  of  them,  even  though  such  dam- 
ages exceed  in  amount  the  whole  price  agreed  to  be  paid  for 
both.3     ^  person  having  sold  his  business  and  good-will  at  a 

1  Myers  v.  Burns,  35  N.  Y.  269  ;  Cook  an  action  on  a  contract,  the  defendant  set 
V.  Soule,  5(j  N.  Y.  420 ;  1  N.  Y.  S.  C.  up  a  counterclaim  of  damages  from  the 
116;  Benkard  v.  Babcock,  2  Robt.  175.  plaintiff's  fraud,  he  cannot,  at  the  trial, 

2  Leavenworth  v.  Packer,  52  Barb,  rely  upon  a  mistake  in  making  the  agree- 
132,  136.  ment :    fraud   and   mistake    are    distinct 

3  Ravvley  v.  Woodruff,  2  Lans.  419  grounds  of  recovery  or  defence  ;  and  proof 
and  see  HofFa  i'.  Hoffman,  33  Ind.  172,  of  one  cannot  be  given  when  the  other 
where  damages  from  fraud  were  counter-  alone  is  pleaded,  Dudley  v.  Scranton,  57 
claimed  in  a  foreclosure  suit.     When,  in  N.  Y.  424,  427. 


8C4  CIVIL    REMEDIES. 

certain  price,  and  having  covenanted  in  the  same  agreement  not 
to  engage  therein  at  the  same  place,  and  the  damages  for  a  breach 
of  this  covenant  having  been  liquidated  and  fixed  at  a  specified 
sum,  in  an  action  brought  by  the  vendee  to  recover  this  amount 
of  liquidated  damages  on  the  ground  that  the  vendor  had  vio- 
lated his  agreement,  the  defendant  was  permitted  to  recover  the 
unpaid  portion  of  the  purchase  price  as  a  counterclaim.^ 

§  779.  It  is  settled  by  numerous  decisions,  although  there  were 
at  first  some  expressions  of  a  contrary  opinion,  that  in  an  action 
to  recover  the  price  of  goods  sold  and  delivered,  or  bargained 
and  sold,  the  purchaser's  demand  of  damages  for  the  plaintiff's 
breach  of  his  warranty  of  the  quality  of  the  goods  may  be 
pleaded  as  a  counterclaim  ;  in  fact,  there  can  be  no  simpler  and 
plainer  illustration  of  a  counterclaim  arising  out  of  the  very  con- 
tract set  up  by  the  plaintiff  as  the  basis  of  his  recovery.^  When 
the  plaintiff,  who  had  been  employed  as  a  superintendent  of  the 
defendant's  manufactory  under  a  written  agreement  stipulating 
for  his  services  in  that  capacity  at  a  specified  salarj^  for  a  year, 
brought  an  action  for  his  wages,  alleging  that  he  had  been  wrong- 
fully discharged,  a  counterclaim  of  damages  sustained  by  the 
defendants  in  their  business,  through  the  negligent  and  unskilful 
conduct  of  the  plaintiff  in  violation  of  the  provisions  of  the 
same  contract,  was  pleaded,  and  was  fully  upheld  by  the  court.^ 

§  780.  I  have  collected  and  placed  in  the  foot-note  a  number 
of  additional  cases  in  which  the  answers  were  sustained  as  valid 
counterclaims  on  the  ground  that  they  arose  out  of  the  contract 
set  forth  in  the  complaint  or  petition ;  in  some  of  them,  however, 
the  court  merely  said  that  they  arose  either  from  the  "  contract 
or  transaction  set  forth"  by  the  plaintiff,  and  did  not  distinctly 
determine  which  of  these  expressions  was  strictly  the  proper  one 
to  be  used.* 

~    1  Baker  v.  Connell,  1  Daly,  469  ;  and  12  Ohio  St.  344;  Stoddard  v.  Treadwell, 

see  Ainsworth  v.  Bowen,  9  Wise.  348.  26  Cal.  294 ;  but  see  Barker  v.  Knicker- 

2  Lemon  v.  Trull,  13  How.  Pr.  248;  bocker  Life  Ins.  Co.,  24  Wise.  630,  in 
Warren  r.  Van  Pelt,  4  E.  D.  Smith,  202;  which,  under  exactly  similar  circum- 
Dounce  v.  Dow,  57  N.  Y.  16  ;  Love  ?■.  Old-  stances,  the  defendant's  claim,  that  the 
ham,  22  Ind.  51;  French  i-.  Saile,  Stan-  contract  should  be  cancelled,  was  refused, 
ton's  Code  (Ky.),  96;  Morehead  v.  Halsell,  on  the  ground  that  the  facts  made  out  a 
ib.  96 ;  P^arl  c.  Bull,  15  Cal.  421 ;  Hoffa  v.  perfect  defence  at  law  ;  but  no  counter- 
Hoffman,  33  Ind.  172.    See,  coH/ra,  Nichols  claim  of  damages  was  pleaded. 

V.  Boerum,  6  Abb  Pr.290.     This  case  has  ■»  Kacine  Bank  v.  Keep,  13  Wise.  209  ; 

been  expressly  overruled.  Butler  v.  Titus,  13  Wise.  429  ;  Koenipel 

3  Lancaster,  &c.  Man.  Co.  v.  Colgate,     i:  Shaw,  13  Minn.  488  ;  Gleadell  v.  Thorn- 


COUNTERCLAIM.  805 

II.  Cases  in  u'hich  the  Cause  of  Action  alleged  as  a  Counterclaim 
arises  out  of  the  Transaction  set  forth  in  the  Complaint  or  Peti- 
tion as  the  Foundation  of  the  Plaintiff  ^s  Claim. 

§  781.  I  shall  in  this  subdivision  pursue  the  same  plan  as  in 
the  last,  and  collect  the  various  classes  of  cases  in  which  coun- 
terclaims, legal  or  equitable,  have  been  sustained  as  properly 
arising  out  of  the  transaction  set  forth  in  the  complaint,  and  also 
those  in  which  such  attempted  counterclaims  have  been  over- 
ruled ;  and  I  shall  add  whatever  comments,  or  extracts  from 
judicial  opinions,  seem  necessary  to  the  clear  inference  and  state- 
ment of  the  general  principles  and  practical  rules  established  by 
the  courts.  The  import  of  the  term  "  transaction,"  and  of  the 
phrase  "  arising  out  of,"  has  been  already  discussed  with  some 
fulness.  Without  repeating  this  discussion,  the  cases  cited  will 
illustrate  and  complete  it. 

§  782.  The  cases  cited  will  be  classified  and  arranged  into 
groups  according  to  their  nature ;  that  is,  according  to  the 
relief  demanded  by  the  respective  litigants.  The  first  of  these 
classes  will  contain  cases  in  which  the  actions  are  legal,  and  both 
parties  seek  to  recover  a  judgment  for  money  alone.  This  will 
be  subdivided  into  (1)  Those  in  which  the  plaintiff's  cause  of 
action  and  the  defendant's  counterclaim  are  in  form  for  debt  or 
damages  upon  contract  express  or  implied  ;  (2)  Those  in  which 
the  plaintiff's  cause  of  action  is  in  form  for  debt  or  damages 
upon  contract  express  or  implied,  and  the  defendant's  counter- 
claim is  for  damages  arising  from  a  tort,  either  (a)  for  conver- 
sion of  goods,  or  (6)  for  trespasses  or  injuries  to  property  or  to 
person,  or  (c)   for  fraud;  (3)  Those   in   which  the  plaintiff's 

son,  56  N.  Y.  194,  198;  Isham  v.  David-  lej"  v.  Tinsley,  15  B.  Mon.  451;  Norden 

son,  52  N.  Y.  237;   Wlialon  v.  Aldrich,  8  v.  Jones,  33  Wise.  600,  604;  but,  per  con 

Minn.  346  ;  Mason  i'.  Heyward,  3  Minn,  tra,  see   Slayback    v.  Jones,   9   Ind.  470. 

182  ;    Dale   v.   Masters,    Stanton's    Code  Damages  resulting  to  the  defendant  from 

(Ky.),  97  ;  Dennis  v.  Belt,  30   Cal.  247  ;  a  wrongful  issue  of  an  attachment  in  the 

Wilder  v.  Boynton,  63  Barb.  547;  Bur-  action  may  be  counterclaimed,  if  such  act 

ton  V.  Wilkes,   66  N.   C.  604,  610;  Hay  of  the  plaintiff  was  a  breach  of  the  con- 

V.  Short,  49  Mo.  139.     See  McKegney  v.  tract  sued  on,  Waugenheim  v.  Graham,  39 

Widekind,  6  Bush,  107,  as  to  the  extent'  Cal.  169,  176  ;  but  such  damages  cannot 

of  the  relief  which  may  be  granted  to  the  generally  be  recovered  by  way  of  a  coun- 

defendant  in  a  legal  action,  and  when  the  terclaim,  Hembrock  v.  Stark,  53  Mo.  588; 

contract  must  be  reformed  by  an  equi-  Nolle  v.   Thompson,    3  Mete.  (Ky.)  121. 

table  proceeding.     For  examples  of  valid  A  counterclaim  of  damages  from  a  per- 

counterclaims  where  the  defendant  had  an  sonal  tort,  as,  e.rj.,  a  slander,  is  impossible, 

election  to  sue  for  a  tort  or  on  contract,  Conner  v.  Winton,  7  Ind.  523. 
see  Gordon  v.  Bruner,  49  Mo.  570 ;  Tins- 


806  CIVIL   REMEDIES. 

cause  of  action  is  in  form  for  damages  arising  from  a  tort,  and 
the  defendant's  counterclaim  is  for  debt  or  damages  upon  con- 
tract ;  and  (4)  Those  in  which  the  demands  of  both  parties  are 
for  damages  arising  from  a  tort.  The  second  will  contain  legal 
actions  in  which  the  judgment  is  other  than  for  money  ;  and  the 
third  will  embrace  equitable  actions. 

§  783.  First  Class :  Legal  Actions  in  which  hoth  Parties  demand 
a  Money  Judgment :  (1.)  Where  the  Plai7itiff's  Cause  of  Action  and 
the  .Defendant's  Counterclaim  are  in  Form  for  Debt  or  Damages  upon 
Contract  express  or  implied.  A  complaint  alleged  that  the  de- 
fendant had  in  his  possession  $115,  of  which  two-thirds  belonged 
to  the  plaintiff,  and  was  received  by  the  defendant  to  his  use,  and 
demanded  judgment  therefor  :  the  answer,  besides  a  defence  of 
denial,  stated  by  way  of  counterclaim  that  the  plaintiif  had  him- 
self in  fact  received  all  the  money  in  question  (f  115)  ;  that  one- 
third  thereof  belonged  to  the  defendant,  and  was  received  by 
the  plaintiff  to  defendant's  use,  and  prayed  judgment  for  such 
sum.  This  answer  was  adjudged  to  be  a  proper  counterclaim 
arising  out  of  the  transaction  set  forth  in  the  complaint ;  and  the 
plaintiif  having  failed  to  reply,  the  allegations  thereof  were  ad- 
mitted.^ Several  of  the  decisions  quoted  in  the  last  preceding 
subdivision  may  also  be  regarded  as  examples  of  the  class  de- 
scribed under  the  present  head  ;  the  contract  set  forth  by  the 
plaintiff  might  be  considered  a  "  transaction."  Their  facts  need 
not  be  repeated,  and  their  titles  will  be  found  in  the  foot-note.^ 

§  784.  (2.)  Cases  in  which  the  Plaintiffs  Cause  of  Action  is  upon 
Contract^  and  the  Defendant' s  Counterclaim  is  for  Damages  arising 
from  a  Tort.  No  little  conflict  will  be  found  among  the  decisions 
which  are  embraced  within  this  group.  The  judges  have  been 
constantly  influenced  by  the  established  doctrine  of  the  former 
procedure,   which    excluded  without   exceptioii   any   set-off  or 

1  Clinton  v.  EdJy,  1  Lans.  61.     In  an  ^  Racine  Co.  Bank  v.  Keep,  13  Wise, 

action   upon  a  note,   the   defendant  was  209;     Butler    v.    Titus,    13    Wise.    429; 

not  permitted  to  recover  back  usurious  Koempel  v.  Sliaw,  13  Minn.  488 ;  Wha- 

interest  paid  by  him  to  the  plaintiff  on  Ion    v.  Aldrich,   8   Minti.    o46;  Mason  v. 

former  loans  as  a  counterclaim,  because  Heyward,  3  Minn.  182;  Dale  v.  Masters, 

the  demand  did  not  arise  out  of  the  same  Stanton's    Code    (Ky.),    97;    McKegney 

transaction  ;  nor  as  a  set-off,  because  it  v.  Widekind,  6  Bush,  107  ;    Stoddard   v. 

did  not  arise  on  contract,  Smead  v.  Chris-  Treadwell,  26  Cal.  294  ;  Dennis  v.  Belt, 

field,  1    Disney,  18  ;  but   it   seems  a  de-  30  Cal.  247 ;  Hay  v.  Short,  49  Mo.   139  ; 

mand  to  recover  back  usurious  interest  Gordon  v.  Bruner,  49  Mo.  570 ;   Wilder  v. 

paid  for  the  very  loan  which  is  the  basis  Boynton,  63  Barb.  547. 
of  the  action  would  be  a  valid  counter- 
claim, Martin  v.  Pugh,  23  Wise.  184. 


COUNTERCLAIM.  807 

recoupment  or  cross-demand  that  did  not  spring  from  contract. 
Some  have  gone  to  the  length  of  holding  that  a  cause  of  action 
in  favor  of  the  defendant  resulting  from  a  tort  cannot  possibly 
arise  from  the  "  transaction  "  set  forth  by  the  plaintiff  as  the 
foundation  of  his  claim  ;  others,  however,  have  given  a  more 
liberal  and  comprehensive  interpretation  of  the  term.  Their 
differing  views  can  best  be  seen  by  a  comparison  of  their  judicial 
opinions.  In  an  action  for  the  price  of  a  safe  sold  and  delivered, 
the  defendant  pleaded  a  counterclaim,  that  the  plaintiff  had  con- 
verted to  his  own  use  a  safe,  the  property  of  the  defendant,  for 
the  value  of  which  he  demanded  judgment.  The  Common  Pleas 
of  New  York  City  held  that  this  answer  was  based  upon  tort  ; 
that  the  defendant  had  not  so  framed  it  as  to  waive  the  wronsf 
and  sue  upon  an  implied  promise  for  the  price,  and  that  the 
pleading  was  not  a  proper  counterclaim.  Having  thus  fuUj^  dis- 
posed of  the  issues,  the  court  went  on  to  declare  that  if  the  de- 
fendant might  waive  the  tort  and  bring  suit  in  form  for  the  price, 
the  demand  would  not  be  a  valid  counterclaim,  because  the  cause 
of  action  would  not  arise  upon  contract ;  ^  and  upon  a  complaint 
for  the  price  of  goods  sold  and  delivered,  the  Superior  Court  of 
New  York  City  rejected  a  counterclaim  for  the  wrongful  conver- 
sion by  the  plaintiff  of  other  goods  belonging  to  the  defendant.^ 
No  allusion  was  made  in  the  latter  decision  to  the  doctrine  of 
election  of  remedies  between  an  action  for  the  tort,  and  one  in 
form  upon  contract ;  and  in  neither  of  the  cases  could  it  be  pre- 
tended that  the  defendant's  demand,  in  whatever  shape  it  might 
be  put,  arose  out  of  the  transaction  stated  by  the  plaintiff.  On 
the  other  hand,  when,  in  a  suit  upon  a  promissory  note,  the  de- 
fendant pleaded  as  a  counterclaim  that  he  had  j)ledged  certain 
stocks  with  the  plaintiff  as  securit}'  for  the  debt  ;  that  the  latter 
had  wrongfully  sold  them,  and  prayed  judgment  for  their  value, 
—  the  Supreme  Court  of  Wisconsin,  in  reversing  a  judgment  for 
the  plaintiff  rendered  on  the  trial,  assumed  that  the  facts  consti- 
tuted a  good  counterclaim.^ 

§  785.  Damages  from  Trespasses^  Nmsaiices,  Negligences,  and  the 
like.     In  an  action  by  the  lessor  for  rent,  an  answer,  which  stated 

1  Piser  V.  Stearns,  1  Hilt.  86.  contracts  in  wiiich  counterclaims  of  dara- 

2  Kurtz  V.  McGuire,  oDuer,  660.     See     ages  arising  from  unconnected  torts  were 
also  Steinhart  v.  Pitcher,  20  Minn.  102  ;     rejected. 

Street  v.  Bryan,  65  N.  C.  619,  actions  on         ^  Ainsworth  v.  Bowen,  9  Wise.  348. 


808  CIVIL    REMEDIES. 

that  during  the  continuance  of  the  term  the  phiintiff  erected  an 
oven,  furnace,  and  other  apparatus  for  a  bakery  under  the  store 
demised  to  and  occupied  by  the  defendant,  and  by  the  use  thereof 
liad  filled  the  premises  with  smoke,  soot,  and  steam,  and  had 
injured  the  defendant's  goods,  and  demanded  judgment  for  the 
damages  so  caused,  was  treated  as  a  valid  counterclaim  b}'  the 
New  York  Superior  Court.^  But  in  a  similar  action  the  New 
York  Common  Pleas  rejected  a  counterclaim  which  alleged  that 
at  the  time  of  the  letting  mentioned  in  the  complaint  the  plain- 
tiff leased  other  premises  to  the  defendant,  and  that  he  had  before 
the  commencement  of  this  suit  wrongfully  broken  into  said 
premises  and  taken  therefrom  certain  chattels  of  the  defendant, 
which  he  had  injured,  destroyed,  or  lost,  and  prayed  judgment, 
for  the  value  of  the  goods  so  taken.  The  court  declared  that 
this  cause  of  action  clearly  did  not  arise  out  of  the  contract  or 
transaction  set  forth  in  the  complaint,  nor  was  it  connected  with 
the  subject  of  the  action  :  it  was  a  naked  and  independent  act  of 
trespass.^ 

§  786.  Similar  decisions  have  been  made  in  other  actions  than 
those  for  the  recovery  of  rent.  In  a  suit  upon  a  note  given  for 
the  purchase  price  of  land  conveyed  to  the  defendants,  they  were 
not  permitted  to  counterclaim  damages  for  the  plaintiff's  wrong- 
ful entr}'  upon  the  land  so  conveyed,  and  cutting  and  carrying 
away  a  growing  crop  the  title  to  which  had  ^^assed  by  the  deed.^ 
It  has,  however,  been  recently  held  by  the  Supreme  Court  in 
New  York,  that  a  cause  of  action  for  a  tort  may  arise  out  of  the 
transaction  set  forth  by  the  plaintiff;  and  such  a  counterclaim 
was  fully  sustained  in  an  action  on  contract.* 

§  787.  Damages  arising  from  Fraud.  Cross-demands  for  dam- 
ages resulting  from  fraud  will  naturally  occur,  and,  it  would 

1  Ayres  v.  O'Farrell,  4  Robt.  6G8 ;  10  rent  in  which  counterclaims  for  damages 
Bosw.  148.  When  the  cause  was  first  from  torts  of  the  lessor  were  rejected, 
before  it,  the  court  lield  that  by  replying  ^  Slayback  v.  Jones,  9  Ind.  470;  per 
the  plaintiff" had  waived  all  objection  :  on  contra,  see  Gordon  v.  Bruner,  49  Mo.  570, 
the  second  appeal,  tlie  counterclaim  was  571  (which  was  decided  on  the  doctrine  of 
more  definitelj-  approved.  election)  ;  Tinsley  v.  Tinsle3%  15  B.  Mon. 

2  Drake  v.  Cockroft,  4  E.  D.  Smith,  34,  454  459  ;  Smith  v.  Fife,  2  Neb.  10,  13,  in 
39.  See  also  Gallup  v.  Albany  R.  R.,  7  all  which,  counterclaims  of  damages  from 
Lans.  471  ;  Edgerton  v.  Page,  20  N.  Y.  trespasses  to  land  were  sustained;  but  a 
281,  285 ;  Mayor  v.  Parker  Vein  Co.,  12  counterclaim  of  damages  arising  from  a 
Abb.  Pr.  300;  McKensie  v.  Farrell,  4  personal  tort  cannot  be  sustained,  Conner 
Bosw.  192,  202,  which  were  all  actions  for  v.  Winton,  9  Ind.  523. 

*  Wadley  v.  Davis,  63  Barb.  500. 


COUNTERCLAIM.  809 

seem,  might  be  easily 'sustained.  But  there  have  been  decisions 
which  reject  even  such  counterclaims.  In  an  action  on  two 
promissory  notes,  the  defendants  —  the  makers — alleged  that 
they  executed-  a  trust  deed  of  land  as  security  for  their  notes, 
and  proceeded  to  "state  acts  of  fraud  committed  by  the  plaintiff 
in  collusion  with  the  trustee  in  the  deed,  by  which  the  land  was 
sacrificed  and  bought  in  by  the  plaintiff  at  far  less  than  its  value, 
and  prayed  judgment  for  the  damages  resulting  from  the  fraud. 
The  Supreme  Court  of  Missouri  overruled  this  counterclaim  in 
an  opinion  which  contains  many  palpable  errors,  and  which  has 
been  disregarded  by  subsequent  decisions  of  the  same  tribunal.^ 
The  Supreme  Court  of  Indiana,  however,  sustained  a  counter- 
claim in  every  way  analogous  to  the  one  just  described.^  It 
would  seem  that  little  or  no  difficulty  would  be  met  in  giving 
such  a  construction  to  the  statutory  definition  as  will  embrace 
the  cases  of  damages  resulting  from  the  plaintiff's  frauds.  If 
the  action  was  on  contract,  such  damages  formed  a  most  familiar 
example  of  the  former  "  recoupment ;  "  and  it  is  only  necessary  to 
extend  that  doctrine  to  analogous  cases  in  which  a  "  transac- 
tion "  is  to  be  substituted  in  place  of  a  contract. 

§  788.  (3.)  Cases  in  ivhich  the  Plaintiffs  Cause  of  Action  is  for 
a  Tort,  and  the  DpfendanVs  Counterclaiin  is  in  Form  upo7i  Contract. 
The  examples  of  this  class  of  controversies  have  generally  been 
actions  for  the  wrouQ-ful  conversion  of  goods  in  which  the  coun- 
terclaim  of  debt  or  damages  upon  contract  was  interposed,  and 
rested  either  upon  the  theory  that  both  demands  arose  out  of  the 
one  transaction  set  forth  by  the  plaintiff,  or  upon  the  notion  that 
the  plaintiff's  cause  of  action  might  be  regarded  as  founded  upon 
an  implied  contract,  the  tort  being  waived.  Such  an  action  hav- 
ing been  brought  in  form  for  the  conversion  of  goods,  the  answer 
contained  a  counterclaim  setting  up  a  liability  of  the  plaintiff  as 
a  stockholder  in  a  certain  manufacturing  corporation,  averring  all 
the  facts  required  by  the  statute  to  create  a  personal  responsibil- 
ity in  him  for  a  debt  of  the  company.  This  attempted  counter- 
claim was  of  course  overruled,  as  it  had  not  the  least  connection 
with  the  transaction  stated  in  the  complaint,  nor  with  the  subject 
of  the  action.^     I  submit  the  following  doctrine  as  correct  on  prin- 

1  Jones  V.  Moore,  42  Mo.  413,  per  ^  Chambers  v.  Lewis,  28  N.  Y.  454; 
Holmes  J.                                                             11  Abb.  Pr.  210.     See  also  Allen  v.  Ran- 

2  Vail  V.  Jones,  31  Ind.  467.  dolph,  48  Ind.  496.     In  Sclieuncrt  v.  Kaeh- 


810  CIVIL   REMEDIES. 

ciple^  and  as  derived  from  a  true  interpretation  of  the  statute. 
AVhenever  the  facts  are  such  that  an  election  is  given  to  the 
plaintiff  to  sue  in  form  either  for  a  tort  or  on  contract,  and  if  he 
sues  on  contract  the  defendant  may  counterclaim  damages  for 
the  hreach  of  that  contract,  the  same  counterclaim  ma}^  also  be 
interposed  when  the  suit  is  in  form  for  the  tort :  the  facts  being 
exactly  the  same  in  both  phases  of  the  action,  the  counterclaim 
would  clearly  arise  out  of  the  real  transaction  which  was  the 
foundation  of  the  plaintiff 's  demand.  The  term  "transaction" 
refers  to  the  actual  facts  and  circumstances  from  which  the  rights 
result  and  which  are  averred,  and  not  to  tlie  77iere  form  and  man- 
gier in  which  these  facts  are  averred.  Although  there  are  deci- 
sions which  repudiate  this  interpretation  of  the  codes,  and  reject 
the  liberal  rule  drawn  from  it,  I  think  the  doctrine  thus  stated  is 
now  approved  and  supported  by  the  decided  weight  of  judicial 
opinion  as  expressed  in  the  more  recent  authorities. 

§  789.  The  tort  complained  of  by  the  plaintiff  may  not  be  a 
conversion  of  chattels.  The  fact  that  a  cause  of  action  upon 
contract  in  favor  of  the  defendant  may  arise  out  of  the  transac- 
tion set  forth  in  the  complaint  or  petition  in  an  action  in  form  for 
damages  resulting  from  a  tort,  was  distinctly  recognized,  and  the 
doctrine  that  a  counterclaim  setting  up  such  a  demand  should  be 
admitted,  and  should  not  be  rejected  in  deference  to  notions 
which  the  new  procedure  was  designed  to  supplant,  was  clearly 
and  cogently  enforced  by  the  Supreme  Court  of  Indiana  in  an 
opinion  from  which  I  make  a  quotation.' 

ler,  23  Wise.  523,  which  was  an  action  for  tention  of  the  securities,  and  alleges,  by 

the  conversion  of  goods,  a  counterclaim  way  of  counterclaim,  that  tlie  university 

of  damages  from  the  breach  of  the  con-  was  indebted   to  him  for  certain  profes- 

tract  between  the  parties  out  of  which  the  sional  services,  particularly  described,  in- 

plaintifF's  cause  of  action  arose  was  re-  eluding  his  services  in    procuring   these 

jected,  the  court  adding,  that  it  must  also  very  bonds,  among  others,  to  be  issued  to 

have  been  rejected  even  had  the  plaintiff  it  by  the  State,  and  prays  judgment  for 

brought  his  s\iit  inform  on  the  contract,  the    amount   of    such    indebtedness.     In 

which  he  might  have  done,  because  the  pronouncing   upon    tlie    validity    of   this 

right  of  action  would  still  in  fact  be  for  a  answer  as  a  counterclaim,  the  court  say  : 

tort.  "  The  point  is,  that  the  action  is  in  form 

1  Judah  V.  Trustees,  &c.,  16  Ind.   56,  trover,  —  an  action  ex  ilelicio,  —  and  that, 

60.     The  plaintiffs  —  trustees  of  the  Vin-  under  such  action,  the  defendant  cannot 

cennes  University — sue  to   recover   the  avail  himself  of  any  claim  which  he  may 

value  of  certain  bonds  belonging  to  the  have  against  the   plaintiffs   for   services 

corporation,  received  by  the  defendant  as  rendered,  or  money   expended,  on   their 

its  attorney,  and  converted  by  him  to  his  behalf,  even  if  it  was  in  the  recovery  of 

own  use.     He  admits  the  receipt  and  de-  the  identical  property  which  is  the  sub- 


COUNTERCLAIM. 


811 


§  790.  (4.)  Cases  in  which  the  Demands  of  both  Parties  are  for 
Damages  arising  from  Tort.  Counterclaims  of  damages  from 
torts,  when  attempted  to  be  enforced  against  causes  of  action  for 
damages  also  arising  from  other  torts,  have,  with  few  excep- 
tions, been  rejected.  The  courts  have  been  inclined  to  adopt,  or 
at  least  to  assume,  a  general  principle  that  such  a  cross-demand 
can  never  arise  from  the  transaction  set  forth  by  the  plaintiff  as 
the  foundation  of  his  claim.  It  will  be  seen,  however,  that  this 
doctiine  has  not  been  universally  accepted.  In  all  the  cases 
placed  in  the  foot-note,  the  proposed  counterclaims  were  over- 
ruled on  the  ground  that  the  cross-demands  were  for  unconnected 
torts. ^  Opposed  to  this  array  of  authorities,  all  announcing  the 
same  general  doctrine,  there  are  a  few  cases  which  sustain  a 
counterclaim  of  tort  against  a  tort  under  special  circumstances.^ 


jeet  of  tlie  present  action.  We  are  clear 
that  it  was  the  intention  of  tliose  who 
initiated  and  inaugurated  the  present 
Code  of  Procedure  that  parties  litigant 
might,  and  perhaps  should,  determine  in 
each  suit  all  matters  in  controversy  be- 
tween them  which  could  legitimately  be 
included  therein,  keeping  in  view  their 
substantial  rights.  As  proceedings  so 
distinct  as  those  were  at  law  and  in  equity 
are  no  longer  required  to  be  separated, 
but  are  now  blended  in  one  action,  we  are 
unable  to  see  any  reason  for  requiring 
two  actions  to  determine  a  controversy 
in  which  the  rigiits  of  each  party  are  so 
dependent  upon  the  rights  of  the  other  as 
in  the  case  at  bar.  There  is  most  surely 
an  equitable  view  of  this  question,  as  pre- 
sented in  the  case  at  bar,  which  renders 
it  distinct  and  different  from  an  ordinary 
case  in  which  one  should  convert  the 
property  of  another,  and  then  set  up  as  a 
defence  that  the  owner  was  indebted  to 
him  for  some  other  and  distinct  transac- 
tion." The  Supreme  Court  of  North 
Carolina  lias  recently  approved  this  doc- 
trine in  the  most  empliatic  and  general 
manner,  holding  that  opposing  demands 
on  contract  and  for  tort  may  arise  out  of 
the  same  transaction,  Bitting  v.  Thaxton, 
72  N.  C.  541,  549.  For  a  case  in  wiiich 
such  a  counterclaim  was  rejected  because 
it  did  not  "  arise  out  of  the  same  transac- 
tion," &c.,  see  Pattison  v.  Richards,  22 
Barb.  143. 

1  Askins  v.  Beams,   3  Abb.  Pr.  184, 


187  ;  Schnaderbeck  v  Worth,  8  Abb.  Pr. 
37;  Barhyte  v.  Hughes,  83  Barb.  320; 
Henry  v.  Henry,  3  Robt.  614 ;  17  Abb. 
Pr.  411  ;  Murden  v.  Priment,  1  Hilt.  75  ; 
Shelly  c.  Vanarsdoll,  23  Ind.  543  ;  Love- 
joy  V.  Robinson,  8  Ind.  399  ;  Macdougal 
V.  Maguire,  35  Cal.  274,  280;  the  last 
case  holding  that  the  objection  is  not  re- 
moved by  replying  and  going  to  trial  in- 
stead of  demurring. 

-  Tarwater  v.  Hannibal  &  St.  Jo.  R.  R., 
42  Mo.  193.  Li  McArthur  v.  Green  Bay, 
&c.  Canal  Co.,  34  Wise.  139,  146,  the  ac- 
tion was  brought  for  injuries  done  to  the 
plaintiff's  boat  while  passing  through  tiie 
canal,  caused  by  a  break  in  the  canal 
alleged  to  have  resulted  from  defendant's 
negligence ;  the  defendant  set  up,  as  a 
counterclaim,  that  the  break  itself  was 
caused  by  the  plaintiff's  negligence,  and 
prayed  a  judgment  for  the  damages. 
This  counterclaim  was  sustained,  the 
court  saying :  "  If  it  does  not  arise  out 
of  the  transaction  set  forth  in  the  com- 
plaint, it  certainly  is  connected  with  the 
subject  of  the  action."  See  also  Walsh 
V.  Hall.  66  N.  C.  233,  237,  in  which  the 
plaintiff  sued  to  recover  possession  of  a 
horse  which  defendant  had  sold  him  in 
exchange  for  a  tract  of  land,  and  the  de- 
fendant counterclaimed  damages  arising 
from  the  plaintiff's  fraudulent  representa- 
tions in  reference  to  the  land  so  exchanged. 
This  case  certainly  carries  the  doctrine  of 
counterclaim  to  its  extreme  limits. 


812  CIVIL   REMEDIES. 

The  court  of  last  resort  in  Kentucky  has  even  gone  to  the  extent 
of  holding  that,  in  an  action  for  an  assault  and  battery,  a  counter- 
claim of  damages  for  an  assault  and  battery  committed  by  the 
plaintiff  at  the  same  time,  and  as  a  part  of  the  same  affray,  can 
be  interposed,  because  it  arises  out  of  the  same  transaction,  thus 
giving  to  that  word  a  very  broad  and  liberal  meaning.^ 

§  791.  Second  Class  :  Legal  Actions  in  which  the  Judgment  is 
other  than  for  Money.  I  pass  now  to  the  consideration  of  legal 
actions  in  which  the  judgment  is  other  than  for  money;  that  is, 
for  the  recovery  of  chattels  or  of  lands.  In  all  instances  of  this 
class,  the  question  would  present  itself,  and  would  be  the  con- 
trolling one,  whether  the  counterclaim  has  such  a  relation  to  the 
plaintiff's  cause  of  action  that  a  recovery  upon  it  would  defeat, 
lessen,  or  modify  the  relief  which  would  otherwise  be  obtained 
by  him.  The  practical  question,  therefore,  is.  When,  if  ever,  may 
there  be  a  counterclaim  of  money  in  an  action  brought  to  recover 
possession  of  chattels  ?  In  some  exceptional  cases  such  counter- 
claims have  been  allowed,  and  in  my  opinion  properly  allowed. 
For  example,  an  answer  stating  the  circumstances  under  which 
the  goods  demanded  by  the  action  came  into  the  defendant's 
possession,  that  the  plaintiff  was  indebted  to  him  in-  a  specified 
amount,  that  the  chattels  were  delivered  to  him  as  a  security  for 
such  debt,  and  that  he  held  them  by  virtue  of  the  lien  thus 
created  by  the  pledge,  and  demanding  judgment  for  the  debt 
itself,  was  adjudged  a  proper  counterclaim.^  The  New  York 
Court  of  Appeals  has  also  sustained  the  counterclaim  under 
circumstances  involving  the  same  principle.^  The  result  of  these 
authorities  is,  that  a  cause  of  action  on  contract  for  money  may 
so  arise  out  of  the  transaction  which  is  the  foundation  of  the 
plaintiff's  claim  that  it  can  be  interposed  as  a  counterclaim  in  an 
action  brought  to  recover  the  possession  of  chattels.  The  case 
of  a  pecuniary  counterclaim  in  an  action  to  recover  possession  of 
lands  has  already  been  fully  discussed. 

§  792.  Third  Class :  Cases  in  ivhich  the  Plaintiff's  Cause  of 
Action,  or  the  Defendant' s  Co unt'er claim,  or  both,  are  equitable  in 
their  Nature.     The  general  subject  of  equitable  counterclaims 

1  Slone  V.  Slone,  2  Mete.  (Ky.)  339.  »  Thompson   v.  Kessel,  30  N.  Y.  383, 

2  Brown  v.  Buckingliam,  11  Abb.  Pr.  389;  per  contra,  see  Mottat  v.  Van  Doren, 
387  (Sp.  Term).     See  also  Walsh  v.  Hall,     4  Bosw.  609. 

66  N.   C.  233,  237;   but  see.  per  contra, 
Cottier  r.  Babcock,  7  Abb.  Pr.  392  (n.). 


COUNTERCLAIM.  813 

has  already  been  examined,  and  illustrated  by  numorous  exam- 
ples. It  is  thoroughly  settled  as  a  fundamental  doctrine  of  the 
new  procedure  in  relation  to  pleading,  that  an  equitable  counter- 
claim may  be  interposed  to  a  legal  cause  of  action,  and  a  fortiori 
to  one  which  is  itself  equitable.  I  shall  not  repeat  the  discus- 
sion to  be  found  in  a  former  part  of  this  section,  but  shall  simply 
collect  in  the  note  a  few  examples  which  will  illustrate  the  modes 
by  which  such  species  of  cross-demands  may  arise  out  of  the 
transactions  set  forth  by  the  plaintiff  in  his  complaint  or  peti- 
tion,^ 

III.  Cases  in  which  the  Cause  of  Actioyi  alleged  by  the  Defendant 
as  a  Counterclaim  is  or  is  not  connected  with  the  Subject  of 
the  Action. 

§  793.  Little  need  be  added  under  this  particular  head  to  what 
has  been  already  said  in  the  foregoing  subdivisions.  The  cases 
cited  in  the  preliminary  general  discussion  contain  all  the  most 
important  attempts  to  give  a  judicial  construction  to  the  phrase 
"  connected  with  the  subject  of  the  action  ;  "  many  of  those 
which  have  been  quoted  to  explain  and  illustrate  the  clause 
"  arising  out  of  the  transaction,"  &c.,  were  also  referred  by  the 
courts  which  decided  them  to  the  language  of  the  statutory  defi- 
nition now  under  consideration,  —  that  is,  the  counterclaims  Avere 
held  valid  because  they  were  "  connected  with  the  subject  of  the 
action,"  as  well  as  because  they  "  arose  out  of  the  transaction 
set  forth  in  the  complaint."  Finally,  it  may  be  said  that  each 
one  of  the  cases  in  which  the  counterclaim  was  overruled  is  an 

1  Sandfordi  v.  Travers,  40  N.  Y.  140,  mated  tl)at  in  a  mortgage  foreclosure  suit 
143  ;  Akerly  v.  Vilas,  15  Wise.  401 ;  Allen  a  counterclaim  of  debt  or  damages  on  any 
V.  Shackelion,  15  Ohio  St.  145,  147  ;  Mo-  contract  is  proper,  Briggs  v.  Seymour,  17 
berly  v.  Alexander,  19  Iowa,  1B2;  Hill  Wise.  255.  Tiie  following  were  actions 
r.  Butler,  6  Ohio  St.  207,  216.  The  fore-  for  other  kinds  of  equitable  relief :  Grimes 
going  were  foreclosure  suits  of  purchase-  v.  Duzan,  32  Ind.  361  ;  Woodruff  v.  Gar- 
money  mortgages,  in  which  the  mortgagor  ner,  27  Ind.  4  (actions  to  set  aside  a  deed 
counterclainied  damages  for  the  breach  of  of  land) ;  Eastman  v.  Linn,  20  Minn.  433 
the  covenants  of  title  in  the  plaintiff's  (to  quiet  title)  ;  Vail  v.  Jones,  31  Ind. 
deeds,  or  for  the  breach  of  some  other  467  ;  but  if  tlie  cross-demand  does  not 
collateral  agreement,  or  for  the  plaintiff's  arise  out  of  the  transaction  which  is  the 
fraud ;  but,  in  such  an  action,  a  counter-  foundation  of  the  plaintiff's  cause  of  ac- 
claim for  a  slander  of  title  in  respect  to  tion,  and  is  not  connected  with  the  sub- 
the  land  cannot  be  sustained,  Akerly  v.  ject  of  his  action,  it  cannot  be  a  counter- 
Vilas,  21  Wise.  88,  109;  Briggs  v.  Sey-  claim.  Town  of  Venice  v.  Breed,  65  Barb, 
niour,   17   Wise.  255.     It  has   been  inti-  597,  605. 


814.  CIVIL   REMEDIES. 

illustration  of  a  demand  in  favor  of  the  defendant  not  connected 
■with  the  subject  of  the  action. 

§  794.  The  language  of  the  phrase  is  exceedingly  general  and 
vague.  To  construe  it  requires  a  satisfactory  interpretation  of 
the  terms  "subject  of  the  action"  and  "connected  with."  It 
may,  I  think,  be  regarded  as  settled  that  the  connection  here 
spoken  of  must  be  direct  and  immediate.  At  the  same  time,  it 
must  be  considered  as  something  different  from  "  arising  out  of ;  " 
in  other  words,  the  defendant's  cause  of  action  may  be  suffi- 
ciently "  connected  with  the  subject  of  the  action,"  although  it  do 
not  '■'- arise  out  of  the  transaction."  It  can  hardly  be  said,  how- 
ever, that  the  courts  have  definitely  settled  what  is  a  sufficient 
connection  of  itself,  when  not  so  complete  that  the  defendant's 
cause  of  action-  could  also  be  said  to  arise  out  of  the  transaction 
set  forth  by  the  plaintiff;  unfortunately,  in  nearly  all  the  cases 
where  the  judges  have  held  that  the  counterclaim  was  connected 
with  the  subject  of  the  action  according  to  the  true  meaning  of 
the  statute,  they  have  also  said  that  it  arose  out  of  the  transac- 
tion stated  in  the  complaint.  The  most  that  can  be  asserted  with 
any  degree  of  assurance  fs,  that  the  connection  must  be  imme- 
diate and  direct,  and  something  that  the  parties  can  be  assumed 
to  have  contemplated  in  their  dealings  with  each  other.  I  shall 
merely  cite  in  the  note  a  few  cases  which  contain  a  discussion  of 
the  clause,  and  serve  to  illustrate  and  explain  its  scope  and  oper- 
ation.^ 

C.    Counterclaims  embraced  nnthin  the  Second  Subdivision  of  the 
Statutory  Definition  and  Set-offs. 

§  795.  The  form  of  this  provision,  as  found  in  the  codes  which 
make  up  the  first  group,  as  originally  classified  at  the  commence- 
ment of  this  section,  is,  "  2.  In  an  action  arising  on  contract,  any 
other  cause  of  action  also  arising  on  contract,  and  existing  at 
the  commencement  of   the  action."     This  is  substantially  the 

1  Ashley  v.  Marsliall,  29  N.  Y.  494;  v.  Tliaxton,  72  N.  C.  541,  549;  Tliompson 
Vose  V.  Galpen,  18  Abb.  Pr.  96  ;  Xenia  v.  Kessel,  SON.  Y.  383,  389;  Vilas  v.  Ma- 
Bank  ?'.  Lee,  7  Abb.  Pr.  372;  2  Bnsw.  son,  25  Wise.  310,  319  ;  Judah  y.  Trustees, 
694  ;  MciAdow  v.  Ross,  53  Mo.  199,  207  ;  10  Ind.  56,  60  ;  Wadley  v.  Davis,  (13  Barb. 
Jones  i-.  Moore,  42  Mo.  413;  McArthur  500;  Waugenheim  y.  Graham,  39  Cal.  169, 
V.  Green  Bay,  &c.  Canal  Co.,  34  Wise.  176;  Nolle  iJ.  Thompson,  3  Mete.  (Ky.) 
139,  146  ;  Eastman  v.  Linn,  20  Minn.  433  ;  121. 
Walsii  V.  Hall,  66  N.  C.  233,  237;  Bitting 


COUNTERCLAIM.  815 

definition  of  "set-oif"  given  in  the  codes  of  the  second  group. 
The  language  of  this  chiuse  plainly  includes  all  cases  of  counter- 
claim based  on  contract  when  the  plaintiff's  cause  of  action  is 
also  on  contract.  Since,  however,  the  first  branch  of  the  defini- 
tion covers  all  those  instances  where  the  counterclaim  and  the 
plaintiff's  right  of  action  both  spring  from  the  same  contract,  the 
discussion  of  this  second  subdivision  will  be  confined  to  the  in- 
stances in  which,  the  cause  of  action  being  on  contract,  the 
-counterclaim  arises  from  a  different  contract.  For  the  reasons 
before  given,  and  which  need  not  therefore  be  repeated,  this 
construction  of  the  two  parts  into  which  the  entire  definition  is 
divided  seems  to  me  to  be  in  conformity  with  the  plain  intent 
of  the  legislature  and  the  evident  design  of  the  statute. 

§  796.  In  reference  to  the  most  important  and  controlling 
requisite  of  this  provision  and  that  defining  set-off,  no  questions 
of  difficulty  can  arise,  since  the  language  itself  is  so  simple  and 
direct  that  no  room  is  left  for  doubt  as  to  the  construction.  If 
the  plaintiff's  cause  of  action  arises  on  contract,  any  counter- 
claim, legal  or  equitable,  or  set-off,  also  arising  on  contract,  is 
admissible,  provided  the  general  rule  heretofore  stated  is  com- 
plied with,  that  the  relief  granted  to  the  defendant  shall  in  some 
manner  interfere  with,  lessen,  or  modify,  if  not  destroy,  that 
otherwise  obtained  by  the  plaintiff.  This  clause  greatly  enlarges 
the  scope  of  the  former  legal  "set-off,"  for  it  admits  demands  for 
unliquidated  damages  as  well  as  for  debts  or  amounts  ascertained 
and  fixed  by  the  stipulations  of  the  parties.  It  is  also  much 
broader  in  its  operation  than  the  "equitable  set-off,"  which  was 
permitted  by  Courts  of  Chancery,  for  affirmative  equitable  relief 
may  be  obtained  by  the  defendant  which  would  come  within  no 
description  of  an  "  equitable  set-off,"  as  the  term  was  formerly 
understood.  So  far  as  relates  to  the  subject-matter,  therefore,  in 
all  actions  to  recover  money,  either  debt  or  damages  arising  on 
contract,  any  counterclaim  of  debt  or  damages  arising  on  another 
contract  is  valid.  When  the  relief  asked  for  b}^  the  plaintiff,  or 
that  demanded  by  the  defendant,  is  equitable,  whether  the  coun- 
terclaim is  proper  must  depend  upon  the  nature  of  these  reliefs  ; 
that  is,  upon  the  fact  of  their  interfering  with  each  other  so  that 
one  tends  to  destroy,  or  at  least  to  modify,  the  other.  While 
there  can  be  little  or  no  difficulty,  therefore,  in  applying  this  pro- 
vision, so  far  as  the  subject-matter  of  the  counterclaim  is  con- 


816  CIVIL   REMEDIES. 

cerned,  certain  collateral  questions  are  presented,  either  expressly 
or  impliedly,  by  the  clause,  which  are  not  always  so  easy  of  solu- 
tion. One  of  these  is  involved  in  the  requirement  that  the  cause 
of  action  constituting  the  counterclaim  must  be  "  existing  at  the 
commencement  of  the  action."  Another  is  implied  in  the  phrase 
"  arising  on  contract."  Can  a  cause  of  action  be  said  to  "  arise 
on  contract "  when  it  results  from  facts  which  amount  to  a  tort, 
and  would  enable  the  injured  J)^i^'ty  to  bring  an  action  in  form 
ex  delicto  ?  In  other  words,  can  either  party  resort  to  an  election 
between  two  kinds  of  proceeding,  and  thus  make  his  suit  or 
counterclaim  in  form  "  arising  on  contract "  so  as  to  satisfy  the 
requisites  of  the  statute  ?  In  treating  of  the  topics  thus  suggested, 
I  shall, /rs-^  consider  the  general  requirement  that  the  cause  of 
action  constituting  the  counterclaim  must  be  existing  at  the 
commencement  of  the  action  ;  and  shall,  secondly^  'collect  and 
classify  the  various  cases  which  have  been  determined  by  the 
courts,  and  which  furnish  examples  of  counterclaims  arising  from 
different  contracts.  In  this  review  the  question  how  far  a  party 
may,  for  the  purposes  of  complying  with  this  statute,  elect  be- 
tween an  action  for  a  tort  and  an  action  on  contract,  will  be 
answered. 

§  797.  The  codes  do  not  require  that  the  contract  out  of  which 
the  counterclaim  arises  should  have  been  originally  made  with 
the  defendant.  The  demand  may  have  once  been  in  favor  of 
some  third  person,  and  by  him  assigned  to  the  defendant.  When 
this  is  the  case,  the  provision  under  review,  as  found  in  most  of 
the  codes,  makes  it  necessary  that  the  assignment  should  be  fully 
completed  before  the  action  is  commenced,  or  else  the  cause  of  ac- 
tion could  not  be  "  existing  "  in  the  defendant  at  the  "  coitimence- 
ment  of  the  action."  In  the  second  place,  the  right  of  action, 
which  is  the  basis  of  the  counterclaim,  must  have  accrued  before 
the  commencement  of  the  action  ;  the  debt  or  damages  must  be 
both  due  and  payable,  or  the  claim  for  equitable  relief  must  be 
perfect,  so  that  a  suit  to  enforce  it  could  be  maintained,  or  else 
the  cause  of  action  would  not  be  "  existing  "  in  the  defendant  at 
the  time  specified  in  the  statute.^  If,  then,  an  existing  right  of 
action  is  assigned  to  the  defendant  after  the  action  against  him  is 

•  In  one  or  two  of  the  codes,  however,  the  defendant  at  tlie  time  tlie  action  was 
it  is  sufficient  tliat  Hie  demand  is  due  and  commenced,  Shannon  v.  Wilson,  19  Ind. 
payable  when  plea<led,  if  it  was  held  by     112. 


COUNTERCLAIM.  817 

commenced  ;  or  if  a  claim  on  contract  is  transferred  to  him  before 
that  time,  but  does  not  become  due  and  payable  or  enforceable 
until  after  the  suit  is  begun  ;  or,  lastly,  if  a  claim  is  existing  in 
favor  of  the  defendant  at  the  time  the  action  is  commenced  by 
virtue  of  a  contract  originally  made  with  him,  but  does  not 
become  payable  or  enforceable  until  after  that  time,  —  in  none  of 
these  cases  can  the  demand  be  set  up  by  him  as  a  counterclaim 
in  the  action.  The  answer  must  also  allege  that  the  demand 
was  existing  in  favor  of  the  defendant  when  the  action  was 
commenced.  These  positions  are  fully  sustained  by  the  deci- 
sions.^ 

§  798.  I  now  proceed  to  inquire,  What  causes  of  action  on 
contract,  and  on  what  contracts,  may  be  counterclaimed  under 
this  second  branch  of  the  definition?  It  maybe  stated  as  the 
universal  rule  that,  in  an  action  on  contract  to  recover  debt  or 
unliquidated  damages,  the  defendant  may  counterclaim  debt  or 
damjiges  arising  on  another  contract,  whether  such  damages  are 
unliquidated  or  ascertained.  But  in  the  absence  of  statutory 
requirement  he  is  not  obliged  to  do  so  ;  he  may  refrain  from 
urging  his  demand  in  this  manner,  and  may  enforce  it  in  a  sep- 
arate action.^     A  few  early  cases  lay  down  a  different  doctrine, 

1  Rice  t;.  O'Connor,  10  Abb.  Pr.  362  ;  of  damages  for  non-performance  of  a  build- 
Van  Valen  i*.  Lapham,  5  Duer,  689  ;  Gan-  ing  contract  by  the  builder;  BIdwell  v. 
non  y.  Douglierty,  41  Cal.  661;  Rickard  Madison,  10  Minn.  13,  action  by  a  bank  on 
V.  Kohl,  22  Wise.  506  ;  Newkirk  v.  Neild,  a  note,  counterclaim  of  damages  from  the 
19  Ind.  194.  If  the  demand  had  been  negligence  of  the  bank  in  not  collecting 
actually  transferred  to  the  defendant  by  another  note  left  with  it  for  collection ; 
an  absolute  verbal  assignment  before  the  Louisville,  &c.  R.  R.  v.  Thompson,  18  B. 
commencement  of  the  action,  although  Mon.  73-5,  742,  action  by  a  railroad  to  re- 
the  written  assignment  of  the  same  was  cover  stock-subscription,  counterclaim  of 
executed  after  that  date,  it  can  be  used  as  damages  from  a  breach  of  an  agreement 
a  counterclaim.  West  v.  Moody,  33  Iowa,  to  pay  for  land  taken  by  the  railroad  ; 
137,  139;  Cottle  v.  Cole,  20  Iowa,  485;  Williams  v.  Weiting,  3  N.  Y.  Sup.  Ct. 
Conyngham  v.  Smith,  16  Iowa,  471.  It  is  439,  440,  action  by  a  veterinary  surgeon 
held,  in  North  Carolina,  that,  if  the  coun-  to  recover  for  professional  services  ;  coun- 
terclaim is  not  barred  by  the  statute  of  terclaim,  that  defend;int  bought  a  span  of 
limitations  at  the  time  the  suit  is  com-  horses,  relying  upon  plaintiff's  knowledge 
menced,  it  is  good,  although  the  statutory  and  recommendation,  and  promise  to  />aif 
time  may  have  elapsed  when  it  is  actually  for  them  if  they  were  not  good,  &c.,  — 
pleaded,  Brumble  v.  Brown,  71  N.  C.  513,  breach,  and  damages.  Held,  a  good  coun- 
S16.  terclaim,    that    plaintiff's    promise     was 

2  Lignot  V.  Redding,  4  E.  D.  Smith,  binding,  the  defendant's /^-eyf/c^/ce  in  buy- 
285  ;  Schubart  i'.  Harteau,  34  Barb.  447,  ing  them  being  a  sufScient  consideration, 
per  Ingraham  J.  ;  Atwater  v.  Schenck,  9  That  defendant  need  not  set  up  his  cross- 
wise. 160,  164,  per  Cole  J.,  an  action  on  a  demand  as  a  counterclaim,  see  Douglas  v. 
note,  counterclaim  of  the  amount  due  for  First  Nat.  Bank,  17  Minn.  35;  Emmer- 
the  price  of  land  sold  ;  Conway  v.  Smith,  13  son's  Administrator  v.  Herriford,  8  Bush, 
Wise.  125, 139,  per  Paine  J.,  counterclaim  229,  and  cases  cited ;  Woody  v.  Jordan, 

62 


818  CIVIL   REMEDIES. 

and  require  the  damages  to  be  liquidated  so  that  they  would  con- 
stitute a  good  set-off  under  the  ancient  rules  ;  but  these  deci- 
sions are  palpably  erroneous,  and  are  completely  overruled.^  The 
right  of  action  must  of  course  arise  out  of  contract,  or  be  on  con- 
tract ;  and  it  has  been  doubted  whether  the  claim  for  contribution 
by  one  suret}^  against  a  co-surety  so  arises  from  contract  that  it 
may  be  counterclaimed  in  an  action  brought  upon  another  con- 
tract.2  This  doubt,  in  my  opinion,  is  altogether  too  refined. 
Whatever  may  have  been  the  equitable  origin  of  the  claim  of  one 
surety  against  another,  it  is  very  well  settled  that  he  could  main- 
tain a  common-law  action  of  assumpsit  to  recover  his  contribu- 
tory share.  This  shows  that  the  law  treated  the  liability  as  one 
arising  from  an  implied  promise.  In  presenting  his  counterclaim 
the  defendant  must  conform  to  all  the  requirements  of  pleading 
by  plaintiffs  in  stating  their  causes  of  action.  All  the  facts  con- 
stituting the  cause  of  action  must  be  averred  in  the  same  manner 
and  with  the  same  degree  of  j)articularity  as  would  be  requisite 
were  the  pleading  a  complaint  or  petition.^ 

§  799.  In  an  action  on  an  ordinary  contract  the  defendant  may 
set  up  as  a  counterclaim  a  judgment  which  he  has  recovered 
against  the  plaintiff,  and  this  without  leave  first  obtained  from 
the  court,  where  such  leave  is  necessary  in  order  to  sue  on  the 
judgment.*  The  doctrine  also  applies  to  those  rights  of  action 
which,  although  allowed  only  by  statute,  are  regarded  as  arising 
on  an  implied  promise,  and  under  the  old  system  would  have 
been  enforced  by  an  action  ex  contractu.  As,  for  example,  where 
the  plaintiff  sued  to  recover  back  money  lost  by  a  wager,  and 
paid  to  the  defendant,  a  counterclaim  of  a  similar  demand  against 
the  plaintiff,  originally  in  favor  of  a  third  person  and  dulj^  assigned 
to  the  defendant,  was  sustained  by  the  New  York  Supreme  Court.^ 
It  is  now  established  in  opposition  to  some  of   the   earlier  deci- 

69  N.   C.  189,  197.    For  an  example  of  identical  with  the  second  subdivision  in 

this  species  of  counterclaim  or  set-off,  see  the  codes  of  the   first  group,  Boyer  v. 

Mullendore  v.  Scott,  45  Ind.  113  ;  Curtis  Clark,  3  Neb.  161,  168,  169. 
V.  Barnes,  30  Barb.  225,  action  for  goods  •  Schmidt  v.  Coulter,  3  Minn.  492. 

sold,  counterclaim  of  damages  from  the  ^  Holgate  v.  Broome,  8  Minn.  243,  a 

breach  of  an  arbitration  bond.  counterclaim  held  bad  because  defendant 

1  See,  e.  f/..  Evens  v.   Hall,   1   Handy,  did  not  state  his  cause  of  action  for  goods 

434  (Cincinnati  Sup.  Ct.  at   Sp.  Term),  sold  and  delivered  with  sufficient  fulness. 
This  construction  is  given  to  the  provi-  <  Wells   v.   Henshaw,    3   Bosw.    625; 

sion  in  Nebraska :  it  is  held  that  a  claim  Clark  v.  Story,  2'J  Barb.  2',>5. 
for  unliquidated  damages  even   on    con-  *  McDougali  v.  Walling,  48  Barb.  364. 

tract  cannot   be   set  off  under  a  clause 


COUNTERCLAIM.  819 

sions  which  have  been  expressly  overruled,  that  a  demand  grow- 
ing out  of  the  unsettled  partnership  transactions  between  the 
plaintiff  and  defendant  may  be  pleaded  as  a  counterclaim.  It  is 
necessary,  however,  that  the  defendant  should  not  only  aver  the 
existence  of  such  unsettled  transactions  and  ask  an  accounting, 
but  allege  that  upon  such  accounting  a  balance  will  be  found  due 
him  from  the  plaintiff,  and  he  must  demand  judgment  therefor. 
Without  the  averment  of  such  a  balance,  the  counterclaim  will 
be  bad  on  demurrer. ^ 

§  800.  An  executor  cle  son  tort  becomes  liable  to  those  inter- 
ested in  the  estate  to  the  extent  of  the  value  of  the  property 
which  he  appropriated  ;  this  is  not  the  liability  of  a  mere  tort- 
feasor towards  the  owner  of  the  thing  injured  :  it  is  the  same 
liability  which  flows  from  the  ordinary  trust  relation  of  executor 
towards  the  creditors  and  legatees,  enforceable  by  actions  of 
accounting,  &c.  It  has  been  held,  therefore,  that  such  responsi- 
bility of  the  plaintiff  may  be  interposed  as  a  counterclaim  by  a 
defendant  sued  on  contract,  when  he  is  a  creditor  of  the  estate 
with  which  the  plaintiff  has  wrongfully  intermeddled.^  An 
action  by  a  pledger  of  stocks  against  the  pledgee,  to  recover 
damages  for  their  wrongful  sale  at  private  sale  and  without 
notice,  has  been  said  to  be  on  contract  and  not  for  conversion, 
and  for  that  assigned  reason  a  counterclaim  based  upon  another 
contract  was  held  admissible.^ 


1  Hendry  v.  Hendry,  32  Ind.  349 
Waddell  v.  Darling,  51  N.  Y.  327,  830 
Clift  V.  Northrup,  6  Lans.  380  ;  per  contra 
Hammond  v.  Terry,  8  Lans.  186 ;  Ives  v. 
Miller,  19  Barb.  196 ;  Iliff  v.  Brazill,  27 
Iowa,  131;  Haskell  v.  Moore,  29  Cal 
437. 

-  McKenzie   v.  Pendleton's   Adminis 


Smead  v.  Chrisfield,  1  Disney,  18 ;  An- 
thony V.  Stinson,  4  Kans.  211  ;  Collins  v. 
Groseclose,  40  Ind.  414,  416  ;  Curran  v. 
Curran,  40  Ind.  473,  480-484,  and  cases 
cited  ;  West  v.  Moody,  33  Iowa,  137,  139  ; 
Remington  v.  King,  11  Abb.  Pr.  278 ; 
Williams  v.  Brown,  2  Keyes,  486  ;  Schief- 
felin   V.  Hawkins,  1  Daly,  289  ;  Berry  v. 


trator,  1  Bush,  164.     As  a  general  rule,  Brett,  6  Bosw.  627 ;  Roberts  y.  Carter,  38 

when  a  receiver,  executor,  administrator,  N.  Y.  107  ;  Miller  v.  Florer,  15  Ohio   St. 

or  trustee  sues  to  recover  a  debt  due  to  149;   Stanberry  v.  Smytlie,  13  Ohio  St. 

the  estate  in  his  hands,  a  demand  of  the  495 ;    Ross   v.   Johnson,    1    Handy,   888 ; 

defendant  for  services   rendered  on   the  McCullough    v.    Lewis,    1   Disney,    564 ; 

employment   of    the    plaintiff   beneficial  Mortland  v.  Holton,  44  Mo.  58  ;  Jones  v. 

to   the   estate   is   a    good    counterclaim,  Moore,  42  Mo.  413 ;  Lamb  y.  Brolaski,  38 

Davis  V.  Stover,  58  N.  Y.  473.  Mo.  51 ;  Kent  v.  Rogers,    24    Mo.    306 ; 

3  Seaman  t'.  Reeve,  15  Barb.  454.     The  Brake  v.  Corning,  19  Mo.  125;  Mahan  v. 

following  cases  give  a  construction  to  the  Ross,  18  Mo.  121  ;  Pratt  v.  Menkens,  18 

language   of    the   clause    defining   "  set-  Mo.  158 ;  House  v.  Marshall,  18  Mo.  368 ; 

off"  as  it  is  found  in  the  second  group  of  Smith  v.  Steinkamper,  16  Mo.  150 ;  Griffin 

codes  :•  Evens   v.   Hall,   1    Handy,   434 ;  v.  Cox,  30  Ind.  242  ;  Blew  v.  Hoover,  30 


820  CIVIL    REMEDIES. 

§  801.  It  may  be  regarded  as  a  doctrine  established  by  the 
overwhelming  weight  of  authority,  that,  whenever  by  the  prin- 
ciples of  the  law,  independent  of  the  new  procedure,  a  cause  of 
action  may  be  treated  as  arising  either  from  tort  or  on  contract, 
and  the  party  holding  the  right  may  elect  between  the  two  kinds 
of  remedial  proceeding,  and  does  in  fact  elect  to  sue  on  contract, 
the  demand  thus  determined  to  be  upon  contract  may  be  counter- 
claimed  against  a  plaintiff's  cause  of  action  arising  on  another 
contract,  or  when  itself  set  up  by  a  plaintiff,  it  may  be  opposed 
by  a  counterclaim  arising  out  of  another  contract.^  The  only 
question  of  doubt  in  the  practical  application  of  this  doctrine 
relates  to  the  necessity  of  indicating  the  election  in  the  pleading 
itself ;  or,  in  other  words,  whether  the  demand  may  not  be  thus 
used  as  a  counterclaim,  or  against  a  counterclaim,  even  though 
the  pleading  contains  no  averments  showing  the  election  to  have 
been  actually  made.  While  the  courts  have  generally  sustained 
this  doctrine,  they  are  not  absolutely  unanimous.  The  Supreme 
Court  of  Minnesota  holds  that  the  code  has  abolished  this  rule 
and  the  right  of  electing  between  the  different  forms  of  action 
ex  contractu  and  ex  delicto ;  or,  rather,  has  destroyed  all  possibility 
of  the  advantage  which  could  once  have  been  derived  under  the 
circumstances  above  mentioned  from  such  an  election. ^     This 

Ind.  450 ;   Stilwell  v.   Chappell,  30  Ind.  5  Iowa,  376  ;  Davis  v.  Milburn,  3  Iowa, 

72;  Grossman    v.  Lauber,  29   Ind.   618;  163;  Dorsey  v.   Reese,  14  B.  Mon.  157; 

Lewis  y.  Sheaman,  28  Ind.  427  ;  DayhuflF  Lansdale    v.  Mitchell,  14  B.    Mon.  350; 

V.  Dayhuff's  Administrator,  27  Ind.  158;  Clark     v.    Finnell,    16     B.     Mon.    837; 

Sayres  v.  Linkhart,  25  Ind.  145 ;  King  v.  Graham   v.  Tilford,  Stanton's  Code,  98 ; 

Conn,  25  Ind.  425 ;  Keightley   v.  Walls,  Thatcher  v.  Cannon,  6  Bush,  541 ;  Ever- 

24  Ind.  205;  Durbon  y.  Kelly's  Administra-  sole  v.   Moore,  3  Bush,   49;    Haddix    v. 

tor,  22  Ind.  183  ;  Indianapolis,  &c.  R.  R.  v.  Wilson,  3  Bush,  523  ;  Miller  v.  Gaitl:er, 

Ballard,  22  Ind.  448 ;  Fankboner  v.  Fank-  3  Bush,  152  ;  Brown  v.  Phillips,  3  Bush, 

boner,  20  Ind.  62;  Shannon  w.  Wilson,  19  656;    Taylor   v.    Stowell,   4   Mete.    175; 

Ind.  112;  Schoonoverw. Quick,  17  Ind.  196;  Shropshire    v.     Conrad,     2    Mete.    143; 

Irish  V.  Snelson,   16  Ind.  365  ;  Reilly  v.  Geoghegan  v.  Ditto,  2  Mete.  433 ;  Finnell 

Rucker,  16  Ind.  303;  Knouer  w.  Dick,  14  v.   Kesbitt,    16   B.  Mon.  354;    Naglee  v. 

Ind.  20 ;  Fox  v.  Barker,  14  Ind.  309  ;  Bool  Palmer,  7    Cal.    543  ;  Hobbs  v.  Duff,  23 

V.  Watson,  13  Ind.  387  ;  Turner  v.  Simp-  Cal.  596  ;  Russell  i-.  Conway,  11  Cal.  93; 

son,  12  Ind.  413;  Blankenship  v.  Rogers,  Naglee  v.  Minturn,  8  Cal.  540;  Marye  v. 

10  Ind.  333 ;  Johnson  v.  Kent,  9  Ind.  252  ;  Jones,  9  Cal.  335  ;  Howard  v.  Shores,  20 

Lovejoy  v.  Robinson,  8  Ind.  399 ;  Wood-  Cal.  277 ;  Collins  v.  Butler,  14  Cal.  223 ; 

■ward  I'.  Laverty,  14  Iowa,  381;  Cook  v.  Lubert  t>.  Chauviteau,  3  Cal.  458;  Ricket- 

Lovell,  11  Iowa,  81 ;  Campbell  r.  Fox,  11  son  v.  Richardson,  19  Cal.  331;  Corwin 

Iowa,  318;  Eyre  v.  Cook,  10  Iowa,  586;  v.  Ward,  35  Cal.  195. 
Stadler  v.  Parmelee,  10  Iowa,  23  ;  Dona-  >  See  Norden   i'.  Jones,  33  Wise.  600, 

hue  V.   Prosser,   10  Iowa,    276;  Reed   v.  604.  See  Ogilvier.  Liglitstone,  1  Daly,  129. 
Chubb,  9  Iowa,  178 ;  Sample  v.  Griffith,  2  Folsom  v.  Carli,  6  Minn.  420. 


COUNTERCLAIM.  821 

opinion  is  based  upon  a  close  and  logical  adherence  to  the  letter 
and  to  the  spirit  of  the  code,  which  require  that  the  facts  consti- 
tuting the  cause  of  action  should  be  averred  in  a  pleading,  and 
abolish  all  forms  of  action. 

§  802.'  In  all  the  foregoing  examples  the  actions  were  legal. 
Some  illustrations  will  now  be  given  of  those  that  are  equitable. 
Many  species  of  equitable  actions  may  arise  on  contract  within 
the  meaning  of  the  statute,  and  equitable  remedies  may  thus  be 
obtained  as  counterclaims  under  the  second  branch  of  the  defini- 
tion. A  suit  was  brought  to  compel  the  conveyance  of  land 
alleged  to  be  held  by  the  defendant  in  trust  for  the  plaintiff.  The 
defendant  was  a  lawyer,  and  the  plaintiff  had  been  his  client. 
As  such  attorney,  he  had  agreed,  it  was  said,  to  bid  in  the  land 
at  a  public  sale,  and  to  hold  it  for  the  plaintiff :  he  did,  in  fact, 
purchase  it  in  his  own  name,  but  retained  it  for  himself,  and  re- 
fused to  convey.  In  his  answer  to  these  allegations,  the  defend- 
ant, besides  denials,  pleaded,  as  a  counterclaim,  a  debt  due  from 
the  plaintiff  for  professional  services  in  relation  to  this  and  other 
matters.  Evidence  to  sustain  this  counterclaim  was  rejected  at 
the  trial,  for  the  reason  that  the  defendant  had  forfeited  all  claim 
to  compensation  on  account  of  his  fraudulent  practices.  The 
Superior  Court  of  New  York  City,  in  reversing  this  decision,  held, 
that,  as  the  action  was  on  contract,  the  counterclaim  was  admis- 
sible, and,  even  if  the  defendant  had  been  guilty  of  wrong  in  one 
matter,  his  right  to  compensation  in  respect  of  other  matters  was 
not  affected  ;  also,  that,  on  the  facts  as  proved,  he  had  com- 
mitted no  fraud  or  breach  of  his  fiduciary  duty  in  the  instances 
charged  against  him.^  In  an  action  to  foreclose  a  purchase-money 
mortgage,  it  is  well  settled  that  the  mortgagor  may  interpose  a 
counterclaim  for  the  damages  sustained  by  him  from  the  breach 
of  covenants  in  the  plaintiff 's  deed  of  conveyance.  Both  causes 
of  action  arise  from  contract,  though  from  different  contracts.^ 

§  803.  The  counterclaim  of  a  mone}"-  demand  on  an  indepen- 
dent and  separate  contract  may  be  interposed  in  the  action  to 
foreclose  ani/  mortgage  of  land,  purchase-money,  or  other,  by  the 
mortgagor  or  defendant  personally  liable  for  the  mortgage-debt, 

1  Currie  v.  Cowles,  6  Bosw.  452.  See  Hall  v.  Gale,  14  "Wise.  54  ;  Walker  v. 
also  Judah  v.  Trustees,  &c.,  16  Ind.  56.  Wilson,  13  Wise.  522  ;  Lowry  v.  Hurd,  7 

2  Eaton  V.  Tallmage,  22  Wise.  526,  Minn.  356,  363  ;  Coy  v.  Downie,  14  Fior. 
528;  Akerly  v.  Vilas,  21  Wise.  88,   109;  544,  562. 


822  CIVIL   REMEDIES. 

and  against  whom  a  decree  for  a  deficiency  could  be  rendered : 
in  resj^ect  to  such  defendants,  both  causes  of  action  arise  on  con- 
tract, and  the  recovery  on  the  counterclaim  directly  interferes 
with  that  on  the  complaint.  In  respect  to  other  defendants  who 
are  not  parties  nor  privies  to  the  contract  of  mortgage,  but  whose 
liens,  or  incumbrances,  or  rights  of  property  in  the  land  are  sim- 
pl}'  cut  off  by  the  decree,  it  may  well  be  doubted  whether  the 
cause  of  action  in  the  foreclosure  suit  can  be  said  to  arise  on 
contract.  This  question  was  recently  passed  upon  by  the  New 
.York  Court  of  Appeals  ;  and  the  doctrine  above  stated  was  fully 
sustained,  and  made  the  basis  of  decision.^ 

IV.  Some  3IisceUaneous  Provisions  in  Relation  to    Counter- 
claims. 

§  804.  As  a  counterclaim  is  always  a  separate  and  indepen- 
dent cause  of  action,  which  the  defendant  may  enforce  against 
the  plaintiff,  is  he  obliged  to  avail  himself  of  it  when  sued  ?  Or 
may  he  omit  to  set  up  the  demand  in  his  answer,  and  make  it  the 
subject  of  another  action  brought  by  himself  ?  In  other  words, 
is  the  opportunity  thus  furnished  by  the  codes  to  try  and  deter- 
mine his  own  claim  in  the  prior  suit  against  himself  a  bar  to  his 
subsequently  maintaining  a  second  suit  for  the  purpose  of  deter- 
mining the  issues  which  might  have  been  so  disposed  of  in  the 
former  one  ?  In  the  absence  of  statutory  prohibition,  no  such 
effect  is  produced  by  the  provisions  of  the  codes  which  authorize 
the  counterclaim.  The  defendant  has  an  election.  He  may  set 
up  his  cause  of  action  as  a  counterclaim,  and  have  both  opposing 
demands  adjudicated  ;  or  he  may  withhold  it,  and  prosecute  it  in 
a  separate  action  brought  for  that  purpose.^  The  codes  of  a  few 
States  expressly  require  the  defendant's  cross-right  to  be  inter- 
posed as  a  counterclaim,  if  a  proper  one  for  that  purpose  ;  and,  if 
he  fails  to  do  so,  he  cannot  enforce  it  by  a  direct  action.^ 

§  805.  As  to  the  form  of  the  verdict,  finding,  and  judgment, 

1  Hunt  V.  Chapman,  51  N.  Y.  555,  557.  ^  So  in  Minnesota,  code,  §  68  ;  Lowry 
See  also  Cliarlton  v.  Tardy,  28  Ind.  452.  v.  Hurd,  7  Minn.  356,  363,  per  Atwater  J. 

2  Welcli  V.  Hazelton,  \\  How.  Pr.  97  ;  "  The  defendants  were  not  only  at  liberty 
Lignot  V.  Redding,  4  E.  D.  Sniitli,  285  to  set  up  this  claim,  but,  by  §  08,  unless 
Gillespie  v.  Torrance,  25  N.  Y.  300,  308,  '  they  did  so,  they  could  not  thereafter 
310,  per  Selden  J.;  Bellinger  v.  Craigue,  maintain  an  action  against  the  plaintiff  on 
31  Barb.  534,  539.  such  claim." 


COUNTERCLAIM.  823 

when  a  pecuniaiy  counterclaim  is  alleged  in  the  answer,  and  es- 
tablished by  the  proofs  at  the  trial  ;  when  the  plaintiff's  demand 
is  proved  and  found  by  the  jury  or  court,  and  the  amount  of  tlie 
counterclaim  as  proved  and  found  equals  it,  the  verdict  must 
be  for  the  defendant,  and  a  judgment  rendered  dismissing  the 
action;  if  the  counterclaim  as  found  be  less  than  the  plaintiff's 
demand  as  found,  a  verdict  should  be  given  for  the  plaintiff  for 
the  excess  of  his  recovery  over  that  of  the  defendant ;  finally,  if 
the  counterclaim  as  found  is  greater  than  the  plaintiff's  demand 
as  found,  a  verdict  should  be  given  for  the  defendant  for  the  ex- 
cess.^  If  the  plaintiff  should  fail  entirely  to  prove  his  cause  of 
action  as  alleged,  the  defendant  would  be  entitled  to  a  verdict 
for  the  whole  amount  of  his  counterclaim  as  established  by  his 
proofs.  The  foregoing  rules  presuppose  that  both  demands  are 
for  the  recovery  of  money,  either  debt  or  damages.  If  the  plain- 
tiff's cause  of  action,  or  the  counterclaim,  is  for  the  recovery  of 
some  special  relief,  legal  or  equitable,  the  judgment  rendered 
must  be  according  to  the  circumstances  of  the  case.  As  has  been 
shown  in  the  foregoing  citations,  there  may  be  instances  in  which 
it  would  be  impossible  for  the  defendant  to  take  any  thing  by  his 
counterclaim,  unless  the  plaintiff's  cause  of  action  should  be 
entirely  defeated.  There  is  a  dictum  in  "an  Indiana  case  to  the 
effect,  that,  where  the  action  is  for  the  recover}-  of  money,  a 
pecuniary  counterclaim,  less  in  amount  than  the  sum  demanded 
by  the  plaintiff,  is  inadmissible,  because,  as  was  said,  it  was  not 
a  complete  bar  or  answer  to  the  action.^  This  dictum  was  founded 
upon  an  entire  misconception  of  the  object  and  uses  of  the  coun- 
terclaim. It  is  not,  in  any  true  sense,  a  defence  in  bar  of  the 
plaintiff's  cause  of  action.  It  may  be  pleaded  when  the  plain- 
tiff's claim  and  right  to  recover  thereon  are  admitted  ;  but,  at  the 
same  time,  it  is  alleged  that  the  defendant  has  also  a  right  on  his 
side  to  recover  a  sum  from  the  plaintiff  upon  an  independent 
cause  of  action,  which  will  equal,  and  so  destroy,  or  exceed,  or 
diminish  the  amount  which  would  otherwise  be  the  plaintiff's 
due.  Undoubtedly,  when  the  plaintiff's  comj)laint  shows  that  he 
is  entitled  to  a  certain  sum,  —  say  $500, —  and  the  defendant,  not 
controverting  these  allegations  by  any  defence  in  bar,  simply  in- 
terposes a  distinct  cross-demand  for  a  less  amount,  —  say  -SoOO,  — 

1  Moore  v.  Caruthers,  17  B.  Mon.  669,  -  MoClintic's    Aflministrator  v.  Cory, 

G81 ;  Hay  v.  Short,  49  Mo.  139,  142.  22  Ind.  170,  173,  per  Wordeii  J. 


824  CIVIL    REMEDIES. 

the  plaintiff's  right  to  a  judgment  for  the  difference  is  at  once 
admitted  ;  and  the  pleadings  may  be  so  framed,  by  the  express 
provisions  of  some,  if  not  all,  of  the  codes,  that  he  is  immediately 
able  to  recover  the  sum  so  admitted  upon  the  record,  while  the 
issues  as  to  the  remainder  are  left  to  be  tried.  To  say  that  a  de- 
fendant shall  not  avail  himself  of  a  smaller  demand,  and  thus 
lessen  the  amount  of  the  plaintiff's  recovery,  because  he  cannot 
allege  facts  which  would  defeat  that  recovery  altogether,  is  as 
palpably  unjust,  and  is  warranted  by  no  requirements  of  the 
statute. 

§  806.  Cross- complaints.  The  practice  in  a  few  of  the  States 
admits  a  "  cross-complaint  "  by  a  defendant,  not  only  against  the 
plaintiff,  but  against  other  defendants.  Although  there  is  a 
general  similarity,  if  not  substantial  identity,  in  the  provisions  of 
the  various  codes  concerning  the  granting  of  relief  to  defendants 
against  the  plaintiffs  or  against  each  other,  yet  a  very  great  differ- 
ence in  the  actual  practice  founded  upon  these  provisions  has 
grown  up  in  the  several  States.  In  most  of  them,  the  clauses  of 
the  statute  referred  to  are  practically  a  dead  letter ;  while  in  a 
few  they  have  been  accepted  and  acted  upon  according  to  their 
evident  intent.  A  wide  departure  has  thus  been  made  in  the 
latter  commonwealths  from  the  methods  which  prevailed  before 
the  introduction  of  the  reformed  procedure.  This  practice,  in 
respect  to  cross-complaints  against  plaintiffs  and  against  other 
defendants,  will  be  best  illustrated  by  a  reference  to  the  facts 
and  decisions  of  a  few  prominent  cases  taken  as  examples.  In 
an  action  brought  by  Joanna  Morris  against  Thompson  and  Dice, 
the  complaint  alleged  that  the  plaintiff,  as  Avidow  of  C.  Morris, 
deceased,  was  owner  in  fee  of  certain  land,  namely,  one  undi- 
vided third  of  land,  of  which  her  husband  died  seized ;  that  she 
was  induced  by  the  frauds  of  Thompson,  in  a  manner  particularly 
described,  to  execute  to  him  a  deed  of  all  her  said  lands  :  a  sec- 
ond paragraph  states  the  same  deed  to  have  been  made  to  Thomp- 
son by  mistake  ;  that  the  heirs  of  her  husband  also  conveyed  all 
their  interest  in  the  same  land  to  T.  at  the  same  time,  who  thus 
held  the  title  to  the  entire  tract ;  that  therefore  T.  conveyed  five- 
sevenths  of  said  tract  to  the  defendant  Dice,  who  took  with  knowl- 
edge of  the  plaintiff's  claim  ;  prayer,  that  her  deed  to  Thompson 
might  be  declared  void,  that  T's  deed  to  D.  might  be  set  aside  so 
far  as  it  conveyed  her  land,  that  her  title  might  be  established,  &c. 


CROSS-COMPLAINT.  825 

Dice  answered,  first,  denials ;  and,  second,  that  he  took  from  T.  in 
good  faith,  without  notice,  and  for  a  full  consideration.  Thomp- 
son, as  an  answer,  interposed  a  cross-complaint  against  Dice,  in 
which,  after  denying  any  fraud,  he  alleged  that  he  took  a  con- 
veyance from  the  heirs  of  C.  Morris,  deceased,  of  all  their  inter- 
est, which  was  an  undivided  two-thirds  of  the  tract ;  that  by 
mistake  his  own  deed  to  D.  conveyed  a  greater  interest  in  the  land 
than  that  which  the  heirs  of  C.  M.  had  owned,  and  which  was  all 
that  he  had  intended  to  convey  to  D.  ;  prayer,  that  his  deed  to 
D.  might  be  reformed  by  correcting  the  mistake.  Dice  an- 
swered this  cross-complaint,  denying  its  averments.  On  the  trial, 
D.  moved  for  a  separate  trial  of  the  issues  between  himself  and 
T.,  which  was  refused.  The  court  found  from  the  evidence  that 
the  plaintiff's  deed  to  T.  was  a  mistake  ;  that  T.  had  reconveyed 
to  her  by  quitclaim  ;  that  on  the  same  day  T.  conveyed  to  D., 
and  in  that  deed  also  there  was  a  mistake,  namely,  that  it  con- 
veyed five-sevenths  of  the  whole  tract  instead  of  five-sevenths  of 
an  undivided  two-thirds^  which  was  the  amount  intended  to 
be  conveyed ;  and  a  judgment  was  rendered  reforming  this 
deed  from  T.  to  D.  On  an  appeal  by  D.  from  this  judgment, 
the  court  held  that  the  matters  averred  in  the  cross-com- 
plaint, and  the  relief  sought  by  it,  were  so  intimately  connected 
with  the  subject  of  the  principal  suit  by  Mrs.  Morris,  that  the 
whole  might  be  properly  litigated  together ;  that  the  cross- 
complaint  stated  a  good  cause  of  action  against  D.,  and  that  the 
latter  was  not  entitled  to  a  separate  trial  of  the  issues  raised  by 
his  answer  to  it.^  It  is  plain,  from  the  facts  as  they  were  found 
by  the  trial  court,  that  the  real  object  of  the  suit  by  Mrs.  Morris 
was  to  get  rid  of  Thompson's  deed  to  Dice.  Thompson's  deed 
back  to  herself  had  purported  to  reconvey  the  title  to  her,  but 
was  partially  inoperative  by  reason  of  the  outstanding  deed  from 
Thompson  to  Dice,  which  was  at  least  a  cloud  upon  her  title. 
By  making  both  of  these  persons  defendants,  she  forced  Thomp- 
son to  attack  his  own  deed  to  Dice.  As  the  matters  of  difference 
between  Thompson  and  Dice  were  closely  blended  with  her  own 
claims  against  both,  and  as  her  remedy  so  directly  depended 
upon  the  result  of  the  contest  between  these  two  parties,  it 
seems  eminently  proper  that  this  triangular  legal  duel  should  be 
fought  in  one  contest,  as  was  done. 

1  Dice  V.  Morris,  32  Ind.  283. 


826  CIVIL   REMEDIES. 

§  807.  Another  decision  by  the  same  court  shows  when  a  cross- 
comphiint  by  defendants  against  other  defendants,  will  not  be  sus- 
tained. Gasharie  and  Davis  sue  one  hundred  and  seven  defendants, 
partners  trading  under  the  name  of  "  Farmers'  Home  Store,"  and 
seek  to  recover  the  amount  of  certain  notes  given  by  the  firm  for 
the  price  of  goods  sold  on  credit,  amounting  to  several  thousand 
dollars.  The  firm  was  an  association  having  a  president,  direc- 
tors, and  members.  The  business  was  conducted  by  a  managing 
agent,  and  overseen  by  the  directors.  One  of  the  articles  of 
association  forbade  the  purchase  or  sale  of  goods  on  credit.  The 
notes  in  suit  were  given  by  the  managing  agent  for  goods  bought 
on  credit.  Twenty-eight  of  the  defendants  put  in  an  answer  by 
way  of  a  cross-complaint  against  the  directors  and  managing 
agent,  who  were  also  defendants.  This  pleading  stated  the  arti- 
cles of  association,  alleged  a  violation  of  them  by  the  directors 
and  managing  agent  in  the  said  purchase  upon  credit,  and  prayed 
that  the  judgment  in  favor  of  the  plaintiffs  might  be  rendered 
against  said  directors  and  agent  in  the  first  instance,  and  enforced 
out  of  their  property.  The  plaintiffs,  and  the  directors  and 
agent  defendants,  demurred  to  this  cross-complaint.  The  court 
held  that  it  stated  no  defence  to  the  plaintiff's  action,  and  pre- 
sented no  case  for  relief  against  the  directors  and  agent.  While 
the  code  provides  that  "judgment  maybe  rendered  for  or  against 
one  or  more  of  several  plaintiff:*,  or  for  or  against  one  or  more  of 
several  defendants,  and  it  may,  when  the  justice  of  the  case 
requires  it,  determine  the  ultimate  rights  of  the  parties  on  each 
side  as  between  themselves,"  and  while  the  court  has  thus  the 
power  to  settle  disputes  between  the  defendants,  it  will  not  do  so 
to  the  detriment  of  the  plaintiff.^ 

§  808.  The  Code  of  Indiana  expressly  authorizes  the  court  to 
determine  the  rights  of  the  parties  as  between  themselves  on 
each  side,  when  the  justice  of  the  case  demands  it.  The  mode 
of  procedure  is  not  pointed  out,  and  therefore  the  general 
methods  of  chancery  must  be  adopted,  modified  by  the  sj)irit  of 
the  code.  When  a  defendant  seeks  relief  against  a  defendant  as 
to  matters  not  appearing  on  the  face  of  the  original  complaint,  he 
must  file  a  cross-complaint  setting  up  the  matters  on  which  he 
relies,  making  as  defendants  thereto  such  of  his  codefendants  and 

1  Manning  v.  Gasharie,  27  Ind.  399.     See  Indiana  code  (2  G.  &  H.  218),  §  368. 


CROSS-COMPLAINT.  827 

others  as  are  proper  ;  and  process  is  necessary  to  bring  them  in. 
It  is  plain  that  there  must  be  notice  and  process  to  the  persons 
against  whom  relief  is  sought  on  the  cross-complaint.^  "  The 
only  real  difference  between  a  complaint  and  a  cross-complaint  is, 
that  the  first  is  filed  by  the  plaintiff,  and  the  second  by  the 
defendant.  Both  contain  a  statement  of  the  facts,  and  each 
demands  affirmative  relief  upon  the  facts  stated.  In  the  making 
up  the  issues  and  the  trial  of  questions  of  fact,  the  court  is  gov- 
erned by  the  same  principles  of  law  and  rules  of  practice  in  the 
one  case  as  in  the  other.  When  a  defendant  files  a  cross-com- 
plaint, and  seeks  affirmative  relief,  he  becomes  a  plaintiff,  and 
the  plaintiff  in  the  original  action  becomes  the  defendant  in  the 
cross-complaint."  ^  The  same  rules  as  to  setting  out  written 
instruments  and  copies  thereof  apply  to  cross-petitions  which 
are  prescribed  in  reference  to  original  petitions.  Where,  how- 
ever, the  cross-petition  is  based  upon  a  writing  which  it  does  not 
set  out  in  full,  but  which  is  annexed  to  the  petition  in  the  action, 
this  is  sufficient ;  the  rule  is  practically  complied  with.^  An 
answer  being  denominated  a  counterclaim  by  the  pleader,  cannot 
in  California  be  treated  as  a  cross-complaint.* 

1  Fletcher  v.  Holmes,  25  Ind.  458,  465,         3  Coe  v.  Lindley,  32  Iowa,  437,  444  ; 
per  Frazer  C.  J.  ;  Meredith  v.  Lackey,  16     Ryder  v.  Thomas,  32  Iowa,  56. 

Ind.  1.  4  McAbee  v.  Randall,  41  Cal.  136. 

2  Ewhig  V.  Pattison,  35  Ind.  326,  330. 


ALPHABETICAL    INDEX. 


[the  references  are  to  sections.] 


ABATEMENT,  defences  in,  697,  698  ;  —  are  new  matter,  711 ;  —  may  be  joined 
with  those  in  bar,  721. 

ACCORD  and  satisfaction,  defence  of,  new  matter,  712. 

ACCOUNTING,  plaintiffs  in  action  for,  259 ;  —  defendants  in  do.,  378. 

ACTION  BY  OR  AGAINST  ONE  as  a  representative  for  all  others  interested, 
388-401 ;  —  provisions  of  the  codes,  388  ;  —  interpretation  thereof,  389  ;  — 
facts  to  be  alleged,  390  ;  — judicial  construction,  391 ;  —  when  one  may  sue  or 
be  sued  for  all  others  interested,  392-395; — applies  to  legal  and  equitable 
actions,  393  ;  —  examples  of  decided  cases,  .394,  395  ;  —  nature  of  such  action, 
and  its  effect  upon  those  represented,  396-401 ;  —  how  they  may  become 
parties,  396;  —  how  far  they  are  bound  by  the  judgment,  and  how  they  may 
take  advantage  of  it,  397-400  ;  —  what  allegations  to  be  made  by  the  plaintiff, 
401. 

ACTION,  CAUSE  OF,  statement  of  by  the  plaintiff,  432-580  (see  Com- 
plaint, and  Cause  op  Action). 

ACTION,  CIVIL  (see  Civil  Action). 

ACTIONS  UPON  CONTRACTS,  defence  of  new  matter  in,  707-710. 

ACTIONS  FOR  A  CONTRIBUTION,  defendants  in,  385. 

ACTIONS  AGAINST  CORPORATIONS  and  stockholders,  defendants  in, 
360-365. 

ACTIONS  BY  CREDITORS,  defendants  in,  346-350. 

ACTIONS,  EQUITABLE,  plaintiffs  in,  247-270  (see  Plaintiffs,  Joinder 
of);  —  defendants  in,  329-387  (see  Defendants,  Joinder  of). 

ACTIONS  RELATING  TO  ESTATES  of  decedents,  defendants  in,  315, 
351-355  (see  Defendants,  Joinder  of). 

ACTIONS  EX  CONTRACTU  AND  EX  DELICTO,  cannot  be  confounded, 
558-564; — election  between,  567-573  (see  Pleading,  General  Prin- 
ciples of). 

ACTIONS,  FORMS  OP,  use  and  effect  of,  in  development  of  the  law,  6-24;  — 
in  the  Roman  law,  11-14  ;  —  early  English,  16-21. 

ACTIONS  BY  OR  AGAINST  HUSBAND  and  wife,  plaintiffs  in,  234-246 
(see  Plaintiffs,  Joinder  of)  ;  —  defendants  in,  318-328  (see  Defend- 
ants, Joinder  of). 


830  ALPHABETICAL   INDEX. 

ACTIONS  OX  IMPLIED  CONTR.\CTS,  allegations  of  a  promise  m,  538- 
54L 

ACTIONS  CONCERNING  LAND,  defence  of  new  matter  in,  706. 

ACTIONS,  LEGAL,  joinder  of  plaintiffs  in,  218-233  (see  Plaintiffs,  Joix- 
DEK  of); — joinder  of  defendants  in,  294-317  (see  Defendants,  Join- 
PEU  of). 

ACTIONS  LEGAL  AND  EQUITABLE,  facts  to  be  alleged  in,  521-528  (see 
Pleading,  General  Piunciples  of); — theoretical  union  of,  45-64;  — 
union  of,  as  establislied  by  judicial  construction,  65-75  (see  Civil  Action). 

ACTIONS  TO  enforce'  LIENS,  defendants  in,  382-384. 

ACTIONS  FOR  PARTITION,  defendants  in,  373-377  (see  Defendants, 
Joinder  of). 

ACTIONS  IN  PARTNERSHIP  MATTERS,  defendants  in,  378. 

ACTIONS  FOR  POSSESSION,  of  land  by  equitable  owners,  98-103;  — do. 
of  chattels,  defence  of  new  matter  in,  703  ;  —  do.  counterclaim  in,  764-767. 

ACTIONS  TO  QUIET  TITLE,  defendants  in,  369-372. 

ACTIONS  TO  REDEEM,  defendants  in,  387. 

ACTIONS  FOR  RESCISSION  or  cancellation,  defendants  in,  379-381. 

ACTIONS,  SPECIAL,  plaintiffs  in  certain,  232,233;  — do.  defendants  in,  316. 

ACTIONS  FOR  SPECIFIC  PERFORMANCE,  defendants  in,  366-368. 

ACTIONS  BY  TAX-PAYERS,  plaintiffs  in,  142 ;  — defendants  in,  386. 

ACTIONS  FOR  TORTS,  defendants  in,  307-314  (see  Defendants,  Joinder 
of)  ;  —  defence  of  new  matter  in,  704,  705. 

ACTIONS  ON  TRUSTS,  defendants  in,  356-359. 

ADMINISTRATORS  and  executors,  suits  by,  181 ;  —  equitable  actions  by, 
252. 

ADMISSIONS  of  allegations,  578  ;  — qualified  do.,  578,  617. 

AGENTS,  when  plaintiffs  in  actions  on  contracts,  175-177  (see  Trustee  of 
AN  Express  Trust). 

ALLEGATION,  pleading  by,  506. 

ALLEGATIONS,  imperfect  or  insufficient,  548-550  ;  —  do.  redundant  or  irrele- 
vant, 551,  552  ;  —  do.  when  admitted  by  a  failure  to  deny,  578,  617  ;  —  do. 
defective,  when  supplied  by  the  answer,  579. 

ALLEGATIONS  AND  PROOFS  must  correspond,  553-564  (see  Pleading, 
&c.). 

AMENDMENT,  of  parties,  411-431  (see  New  Parties  and  Interven- 
tion) ;  —  of  pleadings,  565,  566. 

ANSWER,  the,  effect  of  in  supplying  defects  in  comjdaint  or  petition,  579; 
—  the  rules  and  doctrines  concerning,  581-808 ;  —  provisions  of  the  codes 
relating  to,  581-591;  —  do.  to  the  answer  in  general,  581;  —  to  union  of 
defences,  582;  —  to  counterclaim  and  set-off,  583,584;  —  to  cross-petition, 
585  ;  —  to  the  reply,  586-588  ;  —  general  requisites  of,  and  rules  applicable  to 
all  answers,  592-609  ;  —  classes  of  answers,  593  ;  —  questions  of  form,  and 
tliose  of  substance,  594-596;  —  motion  substituted  for  the  special  demurrer, 
596  ;  —  defective  answers  described,  how  cured,  597-605  ;  —  distinguished 
from  those  which  are  demurrable,  597,  598  ;  —  cured  by  motion,  599  ;  —  de- 
cisions illustrating  the  foregoing  rules,  GOO-605  ; — joint  answer  by  several 
defendants,  606; — joint  demurrer  to  answer,  606;  —  partial  defences,  607- 
609  ;  —  must  be  pleaded,  607  ;  —  how  pleaded,  608,  609  :  —  defence  of  denial, 
610-685  (see  Denials,  Defence  of)  ;  —  defence  of  new  matter,  686-714 


ALPHABETICAL   INDEX.  831 

ANSWER  —  continued. 

(see  New  Matter,  Defence  of)  :  —  union  of  defences  in  same  answer, 
715-725  ;  —  what  may  be  united,  715  ;  —  how  each  defence  shouhl  be  stated, 
716-720;  —  must  be  complete,  716;  —  mode  of  alleging  separate  specific 
denials,  717-720; — what  kinds  of  defences  maybe  joined  in  one  answer, 
those  in  bar  and  those  in  abatement,  721  ;  —  inconsistent  defences,  722-725; 
counterclaim,  set-ofF,  and  cross-complaint,  726-808  (see  Counterclaim 
and  Cross-Complaint). 

ARBITRAMENT  and  award,  defence  of,  is  new  matter,  702. 

ARGUMENTATIVE  DENIALS,  624-632  (see  Denials,  Defence  of). 

ASSIGNABILITY  of  things  in  action,  144-153 ;  —  not  affected  by  provision  of 
the  codes,  144;  —  things  in  action  which  survive  are  assignable,  145,  146;  — 
what  do  survive,  and  what  do  not,  147;  —  examples  of  those  assignable,  148- 
151;  —  do.  not  assignable,  152,  153. 

ASSIGNEE,  of  thing  in  action  to  be  plaintiff,  125-138  (see  Real  Party  in 
Interest); — do.  equitable,  action  by,  251 ; — do.  in  bankruptcy  or  insol- 
vency, equitable  action  by,  261. 

ASSIGNMENT  of  a  thing  in  action,  effect  of,  upon  defences  to  it,  154-170 
(see  Defences  to  a  Thing  in  Action,  &c.). 

ASSIGNOR  and  assignee  of  thing  in  action,  equities  between,  158-161. 

ASSUMPSIT,  pleading  in  action  of,  512. 


B. 

BAR,  defences  in,  may  be  joined  with  those  in  al/atement,  721. 
BELIEF,  denial  of  knowledge  or  information  sufficient  to  form  a,  640,  641. 
BILLS  and  notes,  actions. by  assignees  of,  128-131. 

BRINGING  IN  NEW  PARTIES,  411-431  (see  New  Parties,  &c.,  and  In- 
tervention) . 

C. 

CANCELLATION,  defendants  in  action  for,  579-581. 

CAPACITY   to  sue,  want  of  legal,  208. 

CAUSE  OF  ACTION,  the,  statement  of,  by  the  plaintiff,  432-580  (see  Com- 
plaint) ; —  meaning  of,  452-457,  518-525  ; — not  dc^fined  by  judicial  deci- 
sion, 452  ;  —  analysis  of  the  action,  elements  thereof  which  are  the  "  cause," 
453,  454 ;  — test  by  which  to  determine  whether  one  or  more  causes  of  action 
are  stated  by  the  plaintiff,  455-457  ; — distinction  between  legal  and  equitable, 
521,  522  ;  —  what  facts  constitute,  523-525  (see  Pleading,  General  Prin- 
ciples of). 

CAUSES  OF  ACTION,  joinder  of,  437-505  (see  Joinder  of  Causes  of 
Action);  —  do.  method  of  stating  separate,  in  one  complaint  or  petition, 
575,  576  ;  —  each  must  be  complete,  575  ;  —  stating  one  cause  of  action  in 
several  counts  or  forms,  576  ;  — joint  or  separate  demurrers  to,  577. 

CESTUIS   QUE   TRUSTENT,  equitable  action  by,  268. 

CHATTELS,  action  by  joint  owners  or  possessors  of,  221-225  (see  Plaintiffs, 
Joinder  of);  —  action  against  joint  owners,  &c.  of,  297,  298; — counter- 
claim in  action  to  recover  possession  of,  764-767  ;  —  defence  of  new  matter 
in  do.,  703. 


832  ALPHABETICAL   INDEX. 

CIVIL  ACTION,  the,  general  nature  of,  31-41  ; — central  feature  of  the  re- 
formed procedure,  31-34 ;  —  its  essential  elements,  its  abolition  of  the  dis- 
tinction between  legal  and  equitable  actions,  35-37;  —  its  parties,  38; — its 
pleading,  39,  40  ;  — its  judgment,  41. 

Theoretical  unity  of  legal  and  equitable  actions  in  one  civil  action,  45-64 ; 
—  nature  of  equity  determined,  45-53  ;  —  equitable  primary  rights,  4(5-48  ;  — 
equitable  remedies,  49-52  ;  —  summary  of  the  foregoing  discussion,  53  ;  — 
how  far  a  union  of  legal  and  equitable  actions  is  possible,  and  what  it  means, 
64-64. 

Union  of  legal  and  equitable  actions  into  one  civil  action  as  established  by 
judicial  construction,  general  nature  of  the  civil  action,  65-75;  — two  schools 
of  judges,  66  ;  —  restrictive  construction  by  one,  66,  67  ;  —  liberal  and  correct 
construction  by  the  other,  abolition  of  the  distinction  between  legal  and 
equitable  actions,  68-73;  —  does  not  abolish  the  distinction  between  legal  and 
equitable  rights  or  causes  of  action,  68  ;  —  nor  between  legal  and  equitable 
reliefs,  69  ;  —  but  abolishes  the  distinction  between  actions,  and  establishes 
one  action  for  all  rights  and  reliefs,  70-73 ;  this  —  doctrine  as  applied  to 
pleading,  74,  75. 

Union  of  legal  and  equitable  rights  and  remedies  in  one  civil  action,  76- 
86;  —  cases  arising  from  such  union,  77  ;  —  union  of  both  legal  and  equitable 
causes  of  action  and  the  granting  of  both   legal  and  equitable  reliefs,  78,  79 ; 

—  union  of  both  causes  of  action  and  the  granting  of  legal  relief  only,  80,  81 ; 

—  both  causes  of  action  alleged,  and  equitable  relief  demanded,  but  legal  relief 
obtained,  82  ;  —  legal  relief  granted  when  only  ec|uitable  was  prayed  for,  83  ; 

—  but  not  unless  a  legal  cause  of  action  is  stated,  84;  —  use  of  an  equitable 
right  in  support  of  a  legal  cause  of  action,  85  ;  —  mode  of  trial  of  legal  and 
equitable  issues  when  united,  86. 

A  legal  remedy  obtained  upon  an  equitable  ownership  or  right,  98-106  ; 
■whether  equitable  owner  of  land  can  maintain  an  action  for  its  possession,  98- 
103  ;  —  action  by  one  partner  against  another  to  recover  a  share  of  firm  prop- 
erty, 104;  —  other  actions,  105;  —  summary,  106. 

Nature  of  civil  actions,  and  the  essential  diiferences  between  them,  107- 
111 ;  —  the  differences  belong  to  the  primary  rights  and  to  the  remedies,  and 
not  to  the  forms  of  the  action,  107,  108  ;  —  examples,  109  ;  —  right  of  elec- 
tion between  actions  ex  contractu  and  those  ex  delicto,  110  ; — impropriety  of 
retaining  the  former  names  of  actions.  111. 

Equitable   defences  to  legal  actions,  87-97  (see  Equit.\ble  Defences). 

CODES,  provisions  of,  concerning  parties,  113-121;  —  real  party  in  interest, 
124  ;  —  defences  to  suit  by  assignee,  154  ;  —  trustee  of  an  express  trust,  171  ; 
— joinder  of  plaintiffs,  1S3  ;  —  suits  between  husband  and  wife,  234-236  ;  — 
joinder  of  defendants,  271  ;  —  action  by  or  against  one  as  a  representative  of 
all  others,  388;  —  several  liability  on  same  instrument,  402,  403  ;  —  bringing 
in  of  new  parties,  411,  412  ;  —  intervention,  413;  —  complaints  or  petitions, 
432-436  ; — joinder  of  causes  of  action,  438-440  ;  —  answers,  counterclaims, 
and  replies,  581-591. 

COMMITTEES    of  lunatics,  &c.,  suits  by,  182. 

COMMON    COUNTS,  use  of,  542-544  (see  Pleading,  General,  &c.). 

COMMON  LAW,  rules  concerning  joinder  of  plaintiffs,  184-193  (see  Plain- 
tiffs, «&c.)  ;  —  do.  of  defendants,  273-283  (see  Defend.vnts,  &c.)  ;  — 
pleading,  principles  of,  508-512  (see  Pleading,  &c.). 


ALPHABETICAL   INDEX.  833 

COMPLAINT  or  petition,  432-580  ;  —  provisions  of  codes,  432-436  ;  —joinder 
of  causes  of  action,  437-505  (see  Joinder,  &c.)  ;  —  general  principles  of 
pleading,  506-573  (see  Pleading,  General  Principles  of)  ;  —  form  of  the 
complaint  or  petition,  574-580;  —  statement  of  separate  causes  of  action, 
575,  576  ;  —  each  must  be  complete,  575;  —  one  cause  of  action  in  two  or 
more  counts,  576  ;  — joint  or  separate  demurrers,  577  ;  —  allegations  admitted, 
578  ;  —  qualified  admission  in  the  answer,  578  ; —  defective  allegations  sup- 
plied by  the  answer,  579  ;  —  prayer  for  relief,  580. 

CONNECTED    WITH  the  subject  of  action,  769-776  (see  Counterclaim). 

CONSTRUCTION  of  pleadings,  liberal,  545-547. 

CONTRACT,  when  agent  may  sue  on,  175-178  (see  Trustee?  of  Express 
Trust); — joint  and  several  rights  on  at  common  law,  185-188;  —  joint, 
actions  on,  226-228,  299-304;  —  several,  actions  on,  229,  306;  —  against 
survivors  on  joint,  302-304  ; — joint  and  several,  actions  on,  305  ;  —  implied, 
actions  on,  538-541  ;  —  actions  on,  distinguished  from  those  for  tort,  558- 
564  ;  —  election  between  actions  on,  and  those  for  tort,  567-573  (see  Plead- 
ing, &c.)  ;  —  defences  of  new  matter  in  actions  on,  707-710  ;  —  counterclaims 
arising  from,  777-780  (see  Counterclaim). 

CONTRIBUTION,  defendants  in  actions  for,  385. 

CORPORATIONS  and  stockholders,  defendants  in  actions  against,  360-365. 

COUNTERCLAIM,  726-805  ;  —  classes  of,  726,  727  ;  —  cross-demands  by  the 
former  system,  729-732  ;  —  set-ofF,  729,  730 ;  —  recoupment,  731,  732  ;  —  re- 
duction of  damages,  733. 

General  description,  nature,  object,  and  uses  of  the  counterclaim,  734- 
748  ; —  embraces  set-off  and  recoupment,  734-736  ;  —  and  also  other  demands, 
737  ;  —  must  be  a  cause  of  action,  738  ;  —  whether  it  implies  a  valid  claim  by 
the  plaintiff;  —  must  be  in  favor  of  the  defendant,  740  ; —  and  against  the 
plaintiff,  741  ;  —  subject-matter  of,  742  ;  —  judicial  constructions.  743-747  ;  — 
must  defeat  or  interfere  with  the  plaintiff's  recovery,  744,  745 ;  —  mode  of 
pleading  it,  748. 

Parties  in  their  relations  with  the  counterclaim,  749-762  ;  —  the  defendant, 
749-751 ;  —  the  plaintiff,  752-754  ;  — when  it  may  be  in  favor  of  one  or  more 
of  several  defendants,  or  against  one  or  more  of  several  plaintiffs,  755-762 ; 
one  or  more  defendants,  756,  757  ;  —  one  or  more  plaintiffs,  758,  759  ;  —  rule 
in  Iowa,  760;  —  summary  of  the  foregoing,  761  ;  —  want  of  necessary  parties, 
762. 

Subject-matter  of,  or  nature  of  the  causes  of  action  which  may  be  counter- 
claims, 763-803;  —  may  be  equitable,  764-767;  — in  actions  to  recover  pos- 
session of  chattels,  767  ;  —  counterclaims  under  first  branch  of  the  definition, 
768-794  ;  —  interpretation  of  this  clause,  "  transaction,"  and  "  connected  with 
the  subject  of  action,"  769-776  ;  —  counterclaims  arising  from  the  contract  set 
forth  by  the  plaintiff,  777-780;  —  do.  from  the  "transaction,"  &c.,  781-792; 

—  in  legal  actions  where  both  parties  demand  a  money  judgment,  783-790; 

—  where  both  are  on  contract,  783  ;  — where  plaintiff's  claim  is  on  contract, 
and  defendant's  is  for  tort,  784-787  ;  —  for  trespasses,  nuisances,  or,  negli- 
gences, 785,  786  ;  —  for  frauds,  787  ;  —  where  plaintiff's  claim  is  for  tort,  and 
defendant's  is  on  contract,  788,  789  ;  —  where  both  are  for  torts,  790  ;  —  in  legal 
actions  for  possession  of  lands  or  chattels,  791 ;  — in  equitable  actions,  792; 

—  counterclaims  "  connected  with  the  subject  of  action,"  793,  794. 
Counterclaims  embraced  in  the  second  branch  of  the  definition,  and  set-offs, 

53 


834  .  ALPHABETICAL   INDEX. 

COUNTERCLAIM  —  conihmed. 

795-80;] ;  —  subject-matter  of,  796  ;  —  when  tlie  right  of  aetion  must  accrue 
to  defendant,  797  ;  —  examples  of  such  counterclaims,  798-803  ;  —  election 
between  actions  ex  contractu  and  ex  delicto,  ^0\\  —  equitable,  802,  803  ;  — 
miscellaneous  provisions,  804,  805  ;  —  whether  a  counterclaim  must  be  pleaded, 
804  ;  —  form  of  verdict  and  judgment,  805. 

COUNTIES,  suits  by,  179. 

CREDITORS'   ACTIONS,  plaintiffs  in,  2GG-268 ;  —defendants  in,  346-350. 

CROSS-COMPLAINT,  806-808. 

CROSS-DEMANDS  (see  Countehclaim). 


D. 

DAMAGES,  recoupment  of,  731,  732;  —  reduction  of,  733;  —  mitigation  of, 
693-696. 

DECEDENTS'   ESTATES,  defendants  in  actions  concerning,  315,  351-355. 

DEFECT   OF  PARTIES,  plaintiff,  206,  207;  — do.  defendant,  287,  288. 

DEFECTIVE   ALLEGATIONS,  when  supplied  by  the  answer,  579. 

DEFECTIVE  ANSWERS,  described,  and  how  objected  to,  597-605  (see  An- 
swer, &c.). 

DEFENCE,  the,  statement  of  (see  Answer,  Dkxials,  New  Matter,  and 
Counterclaim)  ;  —  do.  of  denials,  610-685  (see  Denials)  ;  —  do.  of  new 
matter,  686-714  (see  New  Matter). 

DEFENCES,  partial,  607-609 ;  — under  the  general  denial,  670-682  (see  Gen- 
eral De:nial)  ;  —  in  mitigation,  how  pleaded,  693-696  ;  —  in  abatement,  how 
pleaded,  697,  698;  —  may  be  joined  with  those  in  bar,  721  ;  —  union  of  in 
same  answer,  715-725  ;  —  inconsistent,  722-725  (see  Answer)  ;  —  equitable, 
87-97  (see  Equitable  Defences). 

DEFENCT:S  TO  a  thing  IN  ACTION  assigned,  154-170; —provisions 
of  the  codes,  154;  —  are  not  counterclaims,  155;  —  former  rules  re-enacted 
by  the  codes,  156  ;  —  rule  as  to  defences  in  favor  of  the  debtor,  157  ;  —  equi- 
ties between  successive  assignors  and  assignees,  158-161  ;  —  recent  cases, 
159-161 ;  —  doctrine  of  estoppel  against  the  assignor,  160,  161 ;  —  summary 
of  the  discussion,  162 ;  —  demands  against  assignor  set  off  in  action  by  as- 
signee, 163-169  ;  —  other  defences,  170. 

DEFENDANT,  action  against  one  as  a  representative  of  all  others  interested, 
388-401  (see  Action  by  or  against  one,  &c.)  ;  —  pleading  by  (see  An- 
swer, Dknials,  New  Matter,  and  Counterclaim). 

DEFENDANTS,  joinder  of,  271-387; — provisions  of  the  codes,  271; — com- 
mon-law rules,  273-283 ;  —  concerning  joint,  joint  and  several,  and  several 
liabilities,  273-276;  —  in  actions  on  contract,  277-280;  —  survivors  of  joint 
debtors,  280;  — in  actions  for  torts,  281,  282;  —  in  actions  against  husband 
and  wife,  283. 

.General  doctrines  of  the  reformed  procedure  concerning  joinder  of  defend- 
ants, 284-286  ;  —  how  questions  of  nonjoinder  or  misjoinder  are  raised,  287- 
293; — nonjoinder  of  defendants,  287,  288;  —  misjoinder  of  do.,  289-293; 
—  where  the  liability  is  joint,  290-292. 

Defendants  in  legal  actions,  294-317; — against  owners  and  occupants  of 
land,  294-296;  —  do.  of  chattels,  297,  298;  —  in  actions  on  joint  contracts, 


ALPHABETICAL   INDEX.  835 

DEFENDANTS  —  continued. 

299-304  ;  —  against  survivors,  302-304  ;  —  on  joint  and  several  contracts,  305  ; 

—  on  several  contracts,  306  ; — for  torts,  307-314  ;  —  for  the  settlement  of 
decedents'  estates,  315  ;  —  in  certain  special  actions,  316. 

Defendants  in  actions  against  husband  and  wife,  or  wife  alone,  318-328  ;  — 
general  nature  of  the  legislation,  318;  —  action  against  wife  concerning  her 
separate  property,  319,  323;  —  for  torts  of  wife,  320;  —  for  torts  done  in 
connection  with  her  property,  321  ;  — rules  in  New  York  and  certain  other 
States,  323;  —  in  Indiana,  324; — in  actions  concerning  homesteads,  325;  — 
sole  traders  in  California,  326  ;  — for  wife's  debts  when  single,  327  ;  —  sepa- 
rate defences  by  wife  when  sued  with  her  husband,  328. 

Defendants  in  equitable  actions,  329-387  ;  —  general  principles,  necessary 
and  proper  parties  distinguished,  329-332,  486-490  ;  —  in  actions  to  foreclose 
mortgages,  333-345  ;  —  general  doctrine,  333-335 ;  —  mortgagor  and  his 
grantees,  336,  337;  —  heirs  and  representatives,  337,  338;  —  assignors,  339; 

—  holders  of  notes  secured  by  the  mortgage,  340;  —  occupants  of  the  land, 
341 ;  —  subsequent  and  prior  incumbrancers,  342  ;  —  wives  of  mortgagor  and 
of  subsequent  owners,  343,  344;  —  case  of  homesteads,  345. 

Creditors'  actions,  346-350;  —  nature  of,  346; — judgment  debtor  or  his 
representatives,  347,  350  ;  —  his  assignees,  348.  349  ;  —  and  trustees,  350. 

Actions  concerning  decedents'  estates,  351-355;  —  when  administrator, 
&c.,  a  sufficient  party,  when  heirs  are  necessary,  352,  353;  —  when  legatees, 
distributees,  or  creditors,  not  proper,  354;  —  when  beneficiaries,  legatees, 
&c.,  necessary,  355. 

Actions  involving  trusts,  356-359  ;  —  the  trustee  necessary,  356  ;  —  when 
beneficiaries  are  and  are  not  necessary,  357,  358  ;  —  actions  to  enforce  implied 
trusts,  359. 

Actions  against  corporations  and  stockholders,  360-365;  —  to  wind  up  the 
corporation,  &e.,  360,361;  —  by  judgment  creditors  against  stockholders 
personally  liable,  362 ;  —  by  stockholders  against  the  corporation  and  its 
officers  to  set  aside  fraudulent  transactions,  363  ;  —  for  an  accounting,  365. 

Actions  for  a  specific  performance,  366-368  ;  —  the  parties  to  the  contract, 
their  heirs  and  representatives,  366  ;  — persons  acquiring  subsequent  interests, 
366-368;  —  heirs  or  representatives  of  vendor  and  vendee,  367. 

Actions  to  quiet  title,  369-372  ;  —  all  adverse  claimants  to  be  joined,  369, 
870,  372;  — in  actions  to  correct  mistakes  in  deeds,  &c.,  371. 

Actions  for  partition,  373-377  ;  general  rules  of  equity,  373,  374  ;  — when 
lien-holders  may  be  joined,  375  ;  —  wife  of  a  tenant  in  common,  376  ;  —  when 
personal  representative  of  a  deceased  tenant  in  common  may  be  joined,  376  ;  — 
law  in  Indiana  and  in  California,  377. 

Actions  relating  to  partnership  matters  and  for  an  accounting,  378  ;  —  for 
a  rescission  or  cancellation,  379-381; — for  the  enforcement  of  liens,  382— 
384;  — mechanics'  liens,  382  ;  —  pledges  of  securities,  383  ;  —  for  contribu- 
tion, 385  ;  — by  tax-payers,  386  ;  — to  redeem,  387. 

Defendants  severally  liable  on  the  same  instrument,  402-410  (see  Sev- 
eral  LlAHILlTY   ox    THE   SAME   InSTUUMENT)  . 

DEMURKEIiS,  for  misjoinder  of  causes  of  action,  443-445  ;  — joint  or  separate, 
677  ;  —  special,  abolished,  and  motion  substituted  for,  596. 

DENIALS,  defence  of,  610-685 ; —kinds  of,  610,  611 ;  — divisions  of  the  sub- 
ject, 611,  612;  —  external  forms  of,  general  or  specific,  613;  —  specific  de- 


836  ALPHABETICAL    INDEX. 

DENIALS  —  contimied. 

nials,  nature  and  objects  of,  614-GlG  ;  — issues  formed  by,  615,  616  ;  —  mode 
of  alleging  separate  specifie  denials,  717-720;  —  allegations  admitted  by  a 
failure  to  deny,  017  ;  —  denials  in  form  of  a  negative  pregnant,  Giy-62o;  — 
negative  pregnant  defined,  618;  —  cases  holding  that  such  denials  form  no 
issues,  619-021 ;  —  contrary  cases,  622  ;  —  argumentative  denials  and  specific 
defences  equivalent  to  the  general  denial,  624-632;  —  argumentative  denials 
described,  624-627;  —  examples,  628;  —  special  defences  equivalent  to  the 
general  denial,  629,  630;  —  Indiana  rule,  631,  632;  —  denials  of  all  allega- 
tions not  otherwise  admitted,  &c.,  discussed,  633-636  ;  —  what  allegations  to 
be  denied,  637-639;  — denials  of  knowledge  or  information,  «&c.,  640,  641; 

—  form  of,  640;  —  when  pioper,  641;  —  some  special  statutory  rules,  683- 
685;  —  denying  corporate  existence,  683; — do.,  partnership  in  Wisconsin, 
683  ;  —  in  actions  on  written  instruments  in  Indiana,  684  ;  —  do.  in  Iowa,  684  ; 

—  general  denial  cannot  be  treated  as  sham,  685  ;  —  the  general  denial,  issues 
raised  by  it,  and  defences  provable  under  it,  642-682  (see  General  De- 
nial). 

DEVISEES,  when  joined  as  plaintiffs  in  equitable  actions,  264. 
DISCHARGE  in  bankruptcy,  defence  of,  new  matter,  712. 


E. 

EJECTMENT  by  equitable  owner  of  lands,  98-106. 

ELECTION  between  actions  ex  contractu  and  those  ex  delicto,  567-573,  801 

(see  Pleading,  General  Principles  of,  and  Counterclaim). 
EQUITABLE  ACTIONS,  plaintiffs  in,  247-270  (see  Plaintiffs,  Joinder  of)  ; 

—  defendants  in,  329-387  (see  Defendants,  Joinder  of)  ;  — allegations  in, 
527,  528. 

EQUITABLE   ASSIGNEES,  suits  by,  127,  140. 

EQUITABLE    CAUSES   OF   ACTION,  distinguished  from  legal,  521,  522. 

EQUITABLE   COUNTERCLAIM,  704-767,  802,  803  (see  Counterclaim). 

EQUITABLE  DEFENCES,  87-97  ;  —  former  mode  of  defeating  a  legal  action 
by  an  equitable  right,  87  ;  —  nature  of  an  equitable  defence,  88-90  ;  —  whether 
it  requires  affirmative  relief  or  a  right  to  it  on  the  part  of  the  defendant,  91 ; 

—  examples  of,  92-96  ;  —  in  actions  on  contract,  93  ;  —  in  actions  to  recover 
land,  94  ;  —  in  actions  by  vendors,  95  ;  —  in  other  actions,  96  ;  —  when  affirma- 
tive relief  will  be  granted  to  defendant,  97. 

EQUITABLE  ESTATES,  actions  by  holders  of,  262 ;  — legal  action  by  hold- 
ers of,  98-106  (see  Civil  Action). 

EQUITABLE  AND  LEGAL  actions,  union  of,  45-64;  —  as  established  by 
judicial  construction,  65-75  ;  —  rights  and  remedies  united  in  the  civil  action, 
76-86  (see  Civil  Action). 

EQUITIES,  latent,  between  assignors  and  assignees,  158-161. 

EQUITY,  nature  of  determined,  45-53  (see  Civil  Action);  —  do.  pleading, 
principles  of,  507. 

ESTATES  of  deceased  persons,  defendants  in  actions  concerning,  315;  —  do. 
equitable  actions,  351-355. 

ESTOPPEL,  against  assignor  of  things  in  action,  160,  161;  —  defence  of,  new 
matter,  712. 


ALPHABETICAL   INDEX.  837 

EVIDENCE,  not  to  be  alleged  in  pleading,  526-528  (see  Pleading,  General 
Principles  of);  —  admissible  under  the  general  denial,  670-673  (see  Gen- 
eral Denial). 

EX   CONTRACTU,  actions,  558-564  ;  —  election  to  use,  567-573. 

EX   DELICTO,  actions,  558-564  ;  —  election  to  use,  567-573. 

EXECUTORS  and  administrators,  suits  by,  181 ;  —  equitable  actions  by,  252. 

EXPRESS  TRUST,  trustee  of,  action  by,  171-182  (see  Trustee  of  an  Ex- 
press Trust). 

F. 

FACTS,  constituting  the  ground  of  relief  to  be  alleged,  517,  526-528 ;  —  what 

constitute  the  cause  of  action,  523-525  ;  —  should  be  alleged  as  they  actually 

existed,  and  not  their  legal  aspect  or  meaning,  529  ;  — issuable,  and  not  legal 

'  conclusions,  to  be  denied,  637-639  (see  Pleading,  General  Principles  of, 

and  Denials,  Defence  of). 

FAILURE   OF   PROOF,  total,  556-564  (see  Pleading,  &c.). 

FORECLOSURE,  plaintiffs  in  actions  of,  255,  256  ;  —  defendants  in  do. ,  333- 
345  (see  Defendants,  .Joinder  of). 

FORMER  judgment,  or  recovery,  defence  of,  new  matter,  702. 

FRAUDS,  counterclaims  of,  787. 

G. 

GENERAL  DENIAL,  specific  defences  equivalent  to,  627-632 ;  —  of  all  allega- 
tions not  otherwise  admitted,  &c.,  633-636  :  — 

The  issues  formed  by  it,  and  what  may  be  proved  under  it,  642-682 ;  — 
same  rules  applicable  to  general  and  to  specific  denials,  642;  —  general 
denial  compared  with  the  common-law  general  issues,  643,  644; — general 
issues  desci-ibed,  645-655;  —  their  general  character,  656. 

Nature  and  office  of  the  general  denial,  and  the  issues  formed  by  it,  657- 
669;  —  case  of  McKyring  v.  Bull,  657-659; — other  cases  describing  the 
general  denial,  660-664;  —  doctrine  of  the  California  courts,  665;  —  effect 
of  the  general  denial,  what  it  forces  the  plaintiff  to  prove,  and  what  permits 
defendant  to  prove,  666  ;  —  puts  in  issue  only  material,  issuable  facts,  667, 
668;  —  not  conclusions  of  law,  669. 

General  nature  of  evidence  and  defences  provable,  670-673  ;  —  effect  of 
the  general  denial  depends  upon  the  allegations  by  the  plaintiff,  670,  671 ;  — 
what  cannot  be  proved,  672,  673;  —  some  particular  defences  held  admissible, 
674-682;  —  inactions  for  services,  &c.,  674;  —  for  injuries  through  negli- 
gence, 675;  —  on  notes,  and  for  goods  sold,  676;  —  for  conversion  of  chat- 
tels, 677; — to  recover  possession  of  chattels,  678; — do.  of  lands,  679;  — 
for  malicious  injuries,  680;  —  in  certain  equitable  actions,  681; — other 
miscellaneous   actions,    682  ;  —  cannot  be  treated  as  sham,  685. 

GENERAL  ISSUES,  compared  with  the  general  denial,  643,  644  ;  —  described, 
645-655;  —  general  character  of,  656. 

GRANTEE  of  land,  suit  by  in  name  of  grantor,  143. 

GUARANTOR,  whether  he  can  be  sued  jointly  with  the  principal  debtor,  409, 
410.         • 

GUARDIANS,  suits  by,  182. 


838  ALPHABETICAL   INDEX. 


H. 

HEIRS,  plaintiffs  in  equitable  actions,  2G4. 

HUSBAND  and  wife,  actions  by,  234-24G  (see  Plaintiffs,  Joinder  of)  ;  — 
defendants  in  actions  against,  318-328  (see  Defendants,  Joinder  of). 


IMPLIED  promise,  allegation  of,  538-541. 

INCONSISTENT  defences,  722-725. 

INFANTS,  suits  by  guardians  of,  182,  192,  193. 

INFORMATION  or  belief,  denial  of,  640,  G41. 

INSTRUMENT,  persons  severally  liable  on  the  same,  402-410  (see  Several 
Liability,  &e.) 

INSUFFICIENT  allegations,  548-550  (see  Pleading,  General  Principles 
of). 

INTERVENTION,  423-431;— provisions  of  the  codes,  413;— nature  of  pro- 
visions found  in  the  codes  generally,  423-425  ;  —  when  such  intervention 
permitted,  424  ;  —  examples,  425  ;  —  Iowa  and  California  system,  426-431 ;  — 
cases  illustrating,  426;  —  general  principles  of  this  system,  427-430;  —  cases 
in  Louisiana,  429  (note)  ;  —  cases  in  California,  430  (note)  ;  —  importance 
of  this  system,  431. 

IRRELEVANT  and  immaterial  allegations,  551,  552. 

J. 

JOINDER  OF  CAUSES  OF  ACTION,  437-505  ; —provisions  of  codes,  438- 
440;  —  how  a  misjoinder  may  occur,  and  be  objected  to,  442-451  ;  —  causes 
of  action  to  be  separately  stated,  442  ;  —  when  demurrer  proper,  443;  —  effect 
of  sustaining  a  demurrer,  443-445;  —  forms  of  misjoinder,  446; — proper 
causes  of  action  mingled  in  one  count,  447  ;  —  causes  of  action  separately 
stated,  but  improperly  joined,  448,  449;  —  improper  causes  of  action  mingled 
in  one  count,  450,  451. 

Cause  of  action  defined,  when  only  one  is  stated,  although  different  reliefs 
are  demanded,  452-462  ;  —  not  defined  by  the  courts,  452  ;  —  elements  of  the 
action  which  form  the  "  cause,"  453,  454  ;  —  test  by  which  to  determine  the 
number  of  causes  of  action,  455-457  ;  —  cases  in  which  there  was  one  cause 
of  action,  but  several  reliefs  demanded,  458-462. 

Joinder  of  causes  of  action  arising  out  of  the  same  transaction,  &c.,  mean- 
ing of  these  terms,  463-478;  —  general  nature  of  tlie  cases  described  by  this 
clause,  463,  464; — judicial  interpretation  of  the  clause,  465-471;  —  meaning 
of  "  transaction,"  472-474;  —  and  of  "  subject  of  action,"  475  ;  —  examples 
of  causes  of  action  arising  out  of  the  same  transaction,  &c.,  476 ;  —  do.  not  so 
arising,  477;  —  what  allegations  by  the  plaintiff  are  necessary,  478. 

When  the  proper  joinder  of  the  causes  of  action  is  connected  with  the 
proper  joinder  of  parties,  479-490; — need  not  affect  all  the  parties  alike, 
480;  —  examples  of  misjoinder,  481-484;  — examples  of  a  proper  joinder, 
485;  —  doctrine  of  multifariousness  discussed,  480;  —  positions  •of  Mr.  Cal- 
vert examined,  487-490. 


ALPHABETICAL   INDEX.  '  839 

JOINDER   OF   CAUSES   OF   ACTION  —  continued. 

When  all  the  causes  of  action  are  against  one  defendant,  or  against  all 
the  defendants  alike,  491-505  ;  —  in  actions  on  contract,  492,  493  ;  — election 
between  tort  and  contract,  493  ;  —  in  actions  relating  to  lands,  49  i;  —  for 
injuries  to  property,  495;  —  for  injuries  to  character,  496;  —  special  cases, 
497 ;_  law  of  Indiana  and  Iowa,  illustrations  of,  498,  499;  —  examples  of 
improper  joinder,  500,  501  ;  —  causes  of  action  must  affect  the  parties  in  the 
same  capacity,  502  ;  —  miscellaneous  cases,  503-505. 

JOINDER  OFDEFENDANTS,  271-387  (see  Defendants,  Joinder  of). 

JOINDER  OF  PLAINTIFFS,  183-270  (see  Plaintiffs,  Joinder  of). 

JOINT  ANSWER.  606. 

JOINT  CONTRACTS,  plaintiffs  in  actions  on,  226-228; —defendants  in  do., 
299-304. 

JOINT  OWNERS  of  land,  actions  by,  218-220;  —  of  chattels  do.,  221-225. 

JOINT  RIGHTS,  equitable  actions  by  holders  of,  254-264. 

JOINT  AND  SEVERAL  rights,  184 ;  —  do.  liabilities,  273-276  ;  —  arising  from 
the  same  instrument,  408  ;  —  do.  contract,  action  against  persons  liable  on, 
305  ;  —  do.  causes  of  action,  when  several  judgment  on  is  proper,  756-758. 

JOINT  TORTS,  plaintiffs  in  actions  for,  230. 

JUDGMENT,  several,  when  can  be  rendered  for  or  against  some  of  the  parties 
to  a  joint  action,  756-758;  —  judgment  on  a  counterclaim,  805. 

K. 

KNOWLEDGE  or  information,  denial  of,  640,  641. 


LANDS,  action  by  equitable  owner  to  recover  possession  of,  98-103 ;  —  actions 
by  owners  of,  218-220;  —  against  do.,  294-296;  —  defences  of  new  matter  in 
actions  concerning,  706. 

LATENT  equities,  between  assignor  and  assignees,  158-161. 

LAW,  conclusions  of,  not  to  be  denied  in  pleadings,  637-639 ;  —  development 
of  by  means  of  remedies,  6-24. 

LEGAL  ACTIONS,  joinder  of  plaintiffs  in,  218-233;  — do.  of  defendants  in, 
294-317;  —what  facts  to  be  alleged  in,  526. 

LEGAL   CAPACITY  to  sue,  want  of,  how  objected  to,  208. 

LEGAL   CAUSE  of  action,  distinguished  from  equitable,  521,  522. 

LEGAL  AND  EQUITABLE  actions,  union  of,  45-64 ;  —  do.  as  established  by 
the  courts,  65-75  ;  —  rights  and  remedies,  union  ot  in  one  action,  76-86 
(see  Civil  Action). 

LIABILITY,  several,  on  the  same  instrument,  402-410  (see  Several  Lia- 
bility, &c.). 

LIBERAL  construction  of  pleadings,  545-547. 

LICENSE,  defence  of,'  new  matter,  712. 

LIENS,  holders  of  distinct,  not  to  be  joined  as  plaintiffs,  270  ;  —  defendants  in 
actions  to  enforce,  382-384. 

LIMITATIONS,  statute  of,  when  pleaded,  and  when  taken  advantage  of  by  de- 
murrer, 713,  714. 

LUNATICS,  guardians  or  committees  of,  suits  by,  182. 


840  ALPHABETICAL    INDEX. 


M. 

MARRIED  women,  actions  by,  234-246  (see  Plaintiffs,  Joindek  of)  ;  —  ac- 
tions against,  318-328  (see  Defendants,  Joinder  of). 

MECHANICS'  lions,  defendants  in  actions  to  enforce,  382. 

MISJOINDER,  of  plaintiffs,  209-216  (see  Plaintiffs,  Joinder  of)  ;  — of  de- 
fendants, 289-293  (see  Defendants,  Joinder  of);  —  of  causes  of  action, 
442-451  (see  Joinder  of  Causes  of  Action). 

MITIGATION,  defences  in,  693-696. 

MORTGAGES,  defendants  in  actions  to  foreclose,  333-345  (see  Defendants, 
Joinder  of). 

MULTIFARIOUSNESS  discussed  and  defined,  486. 

N. 

NEGATIVE  pregnant,  denials  in  form  of,  618-623  (see  Denials). 

NEGLIGENCE,  counterclaim  for,  785,  786. 

NEGOTIABLE   paper,  suits  by  assignees  of,  128-131. 

NEW  MATTER,  defences  of,  672,  673,  686-714  ;  —  how  pleaded.  687-691;  — 
general  nature  of,  690-692;  —  defences  in  mitigation,  how  pleaded,  693- 
696;  —  and  in  abatement,  697,  698 ;  —  particular  defences  held  to  be  new 
matter,  699-714;  —  payment,  700,  701 ;  —  arbitrament  and  award,  and  former 
judgment,  702  ;  —  in  actions  to  recover  possession  of  chattels,  703  ;  —  in  ac- 
tions for  torts,  704,  705;  — concerning  lands,  706;  —  upon  contracts,  707- 
710; — joinder  and  capacity  of  parties,  711; — miscellaneous  defences, 
license,  estoppel,  accord  and  satisfaction,  discharge  in  bankruptcy,  and  cer- 
tain statutory  defences,  712 ;  —  statute  of  limitations,  when  to  be  pleaded, 
and  when  taken  advantage  of  by  demurrer,  713,  714. 

NEW  PARTIES,  bringing  in,  411-422;  —provisions  of  codes,  411.  412  ;  — 
three  proceedings  provided  for,  414—417  ;  —  bringing  in  additional  parties 
when  necessary  to  a  complete  determination  of  the  controversy,  418-422;  — 
when  this  can  be  done,  419  ;  —  when  provisions  of  the  codes  are  peremptory, 
419; — when  discretionary,  420; — examples,  421;  —  importance  of  these 
provisions,  422. 

NONJOINDER,  of  plaintiffs,  206,  207;  — of  defendants,  287,  288. 

NUISANCE,  counterclaim  for,  785,  786. 

O. 

OFFICERS,  public,  suits  by,  179. 

OWNERS,  of  land,  plaintiffs,  in  actions  by,  218-220;  —  defendants,  in  actions 
against,  294-296;  —  do.  of  chattels,  plaintiffs  in  actions  by,  221-225;  — ac- 
tions against,  297,  298. 


PARTIAL  defences,  607-609. 

PARTIES  to  the  civil  action,  112-431 ;  —  common-law  and  equity  theories  con- 
trasted, 112  ;  —  provisions  of  the  codes,  113-121 ;  —  general  theory  of  these 


ALPHABETICAL   INDEX.  841 

PARTIES  —  continued. 

provisions,  122; — real  party  in  interest  to  be  plaintiff,  124-143  (see  Real 
Party  in  Interest)  ;  —  assignability  of  things  in  action,  144-153  (see  As- 
signability, «&c.)  ;  —  effect  of  assignment  of  a  thing  in  action  upon  the 
defences  thereto,  154-170  (see  Defences  to  a  Thing  in  Action,  &c.)  ;  — 
■when  the  trustee  of  an  express  trust  may  sue,  171-182  (see  Trustee  of  an 
Express  Trust);  —  who  may  be  joined  as  plaintiffs,  183-270  (see  Plain- 
tiffs, Joinder  of);  —  who  may  be  joined  as  defendants,  271-387  (see  De- 
fendants, Joinder  of)  ;  —  when  one  may  sue  or  be  sued  on  behalf  of  all 
interested,  388-401  (see  Action  by  or  against  One,  &c.)  ;  —  persons  sev- 
erally liable  on  the  same  instrument,  402-410  (see  Several  Liability  on 
THE  Same  Instrument);  —  bringing  in  new  parties  and  intervening,  411- 
431  (see  New  Parties  and  Intervention)  ;  —  parties  in  their  relations 
with  the  counterclaim,  749-7G2  (see  Counterclaim). 

PARTITION,  defendants  in  action  for,  373-377. 

PARTNERS,  legal  actions  between,  104  ;  —  surviving,  actions  by,  224. 

PARTNERSHIP  matters,  defendants  in  actions  concerning,  378. 

PAYMENT,  defence  of  when  new  matter,  when  not,  700,  701. 

PETITION  (see  Complaint). 

PLAINTIFF,  to  be  the  real  party  in  interest,  124-143  (see  Real  Party  in 
Interest)  ;  —  action  by  one  as  a  representative  for  all  others,  388-401  (see 
Action  by  or  against  One,  &c.)  ;  —  pleading  by,  432-580  (see  Com- 
plaint). 

PLAINTIFFS,  joinder  of,  183-270 ;  —  pi-ovisions  of  codes,  183  ;  —  common-law 
rules,  184—193; — joint  and  several  rights  described,  184; — rights  arising 
from  contract,  185,  186  ;  —  from  ownership  of  land,  187  ;  —  survivorship, 
188 ;  — rights  arising  from  tort,  189,  190 ;  —  husband  and  wife,  191 ;  —  gen- 
eral theory  of  common  law  concei-ning  joint  and  several  rights,  192,  193. 

Principles  of  the  reformed  procedure  concerning  parties,  194-200  ;  —  the 
equitable  theory  adopted,  194-200;  — judicial  construction,  201-205. 

Manner  of  raising  questions  as  to  proper  plaintiffs,  206-216; — nonjoin- 
der of,  206,  207; — want  of  legal  capacity  to  sue,  208;  —  misjoinder,  how 
objected  to,  and  effect  of,  209-216. 

Joinder  of  plaintiffs  in  legal  actions,  218-233 ;  —  by  owners  of  land,  218- 
220  ;  —  do.  of  chattels,  221-225  ;  —  do.  by  survivors,  224 ;  —  by  holders  of 
joint  rights  arising  from  contract,  226-228;  — do.  of  several  rights,  229  ;  — 
by  holders  of  joint  rights  arising  from  personal  torts,  230;  —  do.  of  several 
rights,  231 ;  — in  special  actions,  232,  233. 

Actions  by  or  between  husband  or  wife,  234-246  ;  —  statutory  provisions, 
234-236;  —  character  and  effect  thereof,  237;  —  when  permissive  only, 
238; — rules  established  in  New  York  and  States  having  similar  statutes, 
240,  243;  —  in  actions  for  tort  to  wife's  person,  241,  242  ;  —  do.  to  her  prop- 
erty, 244  ;  —  in  actions  by  wife  against  husband  for  torts,  245  ;  —  in  suits  by 
wife  when  husband  has  deserted  her,  246. 

Equitable  actions,  247-270;  —  theory  of  parties  in  equity,  247-249;  — 
owner  of  legal  estate  to  be  joined  in  actions  by  owner  of  the  equitable  estate, 
250-253;  —  by  assignees,  251;  —  by  executors,  &c.,  252;  —  all  holders  of 
equitable  rights,  &c.,  to  be  joined,  254-264; — those  having  joint  rights  or 
interests,  254,  255;  — in  actions  to  foreclose  or  to  redeem,  255,  256;  —  for 
an  accounting,  257;  —  by  residuary  legatees,  &c.,  258;  —  exceptions  in  ac- 

54 


842  '         ALPHABETICAL   INDEX. 

PLAINTIFFS  —  continued. 

tions  for  an  accounting,  259 ;  — actions  by  trustees,  260 ;  —  by  executors,  «S:c., 
261; — by  assignees  in  bankruptcy,  &c.,  261;  —  by  holders  of  future  estates, 
262  ;  —  in  actions  for  a  specific  performance,  263  ;  —  by  heirs-at-law  or  de- 
visees, 264; — holders  of  antagonistic  interests  not  to  be  joined,  265;  — 
holders  of  separate  but  not  antagonistic  interests  may  be  joined,  266-269  ;  — 
creditors,  266-268;  —  beneficiaries,  268;  —  other  holders  of  distinct  interests, 
269;  —  holders  of  distinct  liens,  ifec,  270. 

PLEADING,  general  principles  of,  606-573;  —  three  types  of,  prior  to  the  codes, 
606-512  ;  —  by  allegation,  506  ;  — in  equity,  607  ;  —  common  law,  508-512; 

—  its  technicality,  509  ;  —  its  requisites  in  different  actions,  510;  —  nature 
of  allegations  in,  511;  —  action  of  assumpsit  explained,  512. 

Principles  of  the  reformed  pleading,  513-573;  —  these  principles  found  in 
the  codes  alone,  514,  515;  —  fundamental  doctrines,  516-544;  —  apply  to 
certain  answers,  516;  — material  facts  should  be  alleged  as  they  existed,  not 
their  legal  aspect,  and  not  evidence  of  them,  517  ;  —  "  cause  of  action  "  de- 
fined, 618-525  ; —  distinction  between  legal  and  equitable  causes  of  action, 
621,  522;  —  what  facts  constitute  the  cause  of  action,  523-525  ;  —  these  mate- 
rial facts  to  be  alleged,  and  not  evidence  of  them,  526-528  ;  —  in  legal  actions, 
526  ;  —  in  equitable  actions,  527,  628  ;  —  facts  to  be  alleged  as  they  actually 
existed,  not  their  legal  meaning,  529  ;  — judicial  decisions  illustrating  these 
doctrines,  530-536. 

Actions  on  implied  contract,  whether  a  promise  should  be  alleged  in,  538- 
541;  —  use  of  the  common  counts,  542-544  ;. — use  of  in  actions  on  express 
contracts,  543  ;  —  criticism  of  this  rule,  644  ;  —  pleadings  to  be  liberally  con- 
strued, 545-547;  —  insufficient,  &c.,  allegations,  hovp  objected  to,  548-550; 

—  redundant  and  irrelevant  allegations,  how  objected  to,  551,  552. 

Proofs  must  correspond  with  the  allegations,  553-564 ;  immaterial  vari- 
ance, material  do.,  and  total  failure  of  proof,  difference  between,  653,  664  ;  — 
cases  illustrating  variances,  555;  —  do.  a  total  failure  of  proof,  556,  557;  — 
doctrine  applied  to  actions  ex  contractu  and  those  ex  delicto,  558-564 ;  — 
amendments  of  pleadings,  565,  566;  —  election  between  actions  ex  contractu 
and  those  ex  delicto,  667-573 ;  —  doctrine  of  election  discussed,  567,  568,  571 ; 

—  cases  in  which  it  has  been  permitted,  569-571  ;  — how  plaintiff  should  indi- 
cate his  election,  572,  573. 

Pleading  on  part  of  the  plaintiff,  432-580  (see  Complaint)  ;  —  on  part 
of  defendant  (see  Answer,  Denials,  General  Denial,  New  Matter,  and 
Counterclaim)  ;  — pleading  new  matter,  687-691  (see  New  Matter). 

PRAYER  for  relief,  effect  of,  580. 

PROCEDURE,  reformed  American,  generally  described,  28-41. 

PROMISE,  allegation  of,  in  actions  on  implied  contracts,  638-541. 

PROOFS,  allegations  and,  must  correspond,  563-664 ;  —  total  failure  of,  556-564. 

Q. 
QUIET  TITLE,  defendants  in  a-tions  to,  360-372. 


ALPHABETICAL   INDEX.  843 


R. 


REAL  PARTY  in  interest  to  bo  the  plaintiff,  12i-143 ;  —  assignment  of  a 
thing  in  action  at  the  common  law,  124 ;. —  assignees  to  sue  in  their  own 
names,  125-138;  —  when  the  assignment  is  absolute,  126  ;  — when  it  is  equi- 
table, 127;  —  when  it  is  of  negotiable  paper,  128-131 ;  —  when  it  is  condi- 
tional or  partial,  132,  137;  —  particular  cases  of,  133,  134; — assignor  to  be 
joined  in  certain  States,  135  ;  —  assignment  pending  the  action,  136  ;  —  suing 
"  to  the  use  of"  another,  138  ;  —  the  person  to  whom  a  promise  is  made  for 
the  benefit  of  another  may  sue.  139  ;  — equitable  owner  of  a  note  or  bill,  140; 
—  other  instances,  141 ;  —  suits  by  tax-payers,  &c.,  142;  —  suits  by  grantees 
of  land  in  name  of  the  grantors,  143. 

RECOUPMENT  of  damages,  731,  732. 

REDEEM,  plaintiffs  in  actions  to,  255,  256;  defendants  do.,  387. 

REDUNDANT  allegations,  551,  552. 

REFORMED  procedure,  the,  generally  described,  28-41. 

RELIEF,  prayer  for,  effect  of,  580. 

REMEDIES,  defined,  1-4;  —  prior  to  the  modern  reforms,  5-27;  —  ofKce  and 
function  of,  in  the  development  of  the  law,  6-24;  —  arbitrary  nature  of  early 
forms,  6  ;  —  three  stages  of  progress,  by  use  of  fictions,  by  equity,  and  by 
legislation,  7-10  ;  —  workings  of  this  principle  in  the  Roman  law,  11-14;  do. 
in  the  English  law,  15-24  ;  —  early  forms  of  legal  actions,  16-21 ;  —  rise  and 
progress  of  equity,  22-24  ;  —  classification  of  remedies  under  the  former  sys- 
tem, 25-27  ;  —  do.  under  the  reformed  system,  28-41;  — the  legislation,  na- 
tui-e  of,  28-30;  — the  civil  action,  general  nature  of,  31-41 ;  — union  of  legal 
and  equitable  remedies,  76-86  (see  Civil  Action). 

REPRESENTATIVE  parties,  actions  by  or  against,  388-401  (see  Actiox  by 
OR  AGAixsT  One,  &c.). 

RESCISSION,  defendants  in  actions  for,  379-381. 

RESIDUARY  legatees,  equitable  actions  by,  258. 

RIGHTS,  legal  and  equitable,  union  of,  76-86  (see  Civil  Action). 

ROMAN   LAW,  system  of  remedies  in,  11-14. 

S. 

SET-OFF,  to  a  thing  in  action  when  assigned,  154-170  (see  Defences  to  a 
Thing  in  Action,  &c.)  ;  —  in  the  former  procedure,  731,  732 ;  —  under  the 
codes,  795-803  (see  Counterclaim). 

SlilVERAL  CONTRACTS,  plaintiffs  in  actions  on,  229  ;  — defendants  do.,  306. 

SEVERAL   JUDGMENTS,  when  proper  in  joint  actions,  751-758, 

SEVERAL  LIABILTTY  on  the  same  instrument,  402-410;  —provisions  of  the 
codes,  402,  403  ;  —  first  class  of  provisions  discussed,  effect  of,  404-406  ;  — 
form  of  judgment  in  such  cases,  407  ;  — provisions  apply  to  joint  and  several 
liability,  408  ;  —  cases  of  guarantor  joined  with  the  principal  debtor,  409,  410. 

SEVERAL  TORTS,  plaintiffs  in  actions  for,  231 ;  —  defendants  do.,  307-314. 

SPECIFIC  DENIALS,  nature  and  object  of,  issues  formed  by,  614-616;  — 
mode  of  alleging  separate  specific  denials,  717-720. 

SPECIFIC  PERFORMANCE,  plaintiffs  in  actions  for,  263  ;  — defendants  do., 
366-368. 


844  ALPHABETICAL   INDEX. 

STATUTE,  persons  expressly  autliorized  by,  to  sue,  180  ;  —  of  limitations,  when 
pleaded,  and  when  raised  by  demurrer,  71:3,  71-i. 

STATUTORY    defences,  certain,  are  new  matter,  712. 

STOCKHOLDERS,  defendants  in  actions  against,  360-365, 

SUBJECT  OF  ACTION",  meaning  of,  determined,  465-471,  475 ; —  counter- 
claims connected  with,  769-776  (see  Counterclaim). 

SURVIVORSHIP,  among  joint  creditors,  183;  —  among  joint  debtors,  302- 
304 ;  —  of  things  in  action,  147. 


TAX-PAYERS,  actions  by,  142 ;  — defendants  in  actions  by,  386. 

THINGS  IN  ACTION,  assignability  of,  144-153  (see  Assignability,  &c.)  ; 

—  defences  to  suits  by  assignees  of,  154-170  (see  Defences  to  Thlngs  in 
Action,  &c.). 

TITLE,   actions  to  quiet,  defendants  in,  369-372. 

TORTS,  joint  and  severalrights  arising  from,  189,  190;  —  plaintiflfs  in  actions 
for,  230,  231;  —  defendants  do.,  307-314  ; — actions  for,  distinguished  from 
those  on  contract,  558-564  ;  —  election  between  actions  for  tort  and  on  con- 
tract, 567-573 ;  —  defences  of  new  matter  in  actions  for,  704,  705  ;  —  counter- 
claims for,  781-791. 

TOWNS,  actions  by,  179. 

TRANSACTION,    meaning    of,  465-474  ; —judicial  interpretation,  465-471; 

—  true  interpretation,  472-474 ; — counterclaims  arising  out  of,  &c.,  769- 
776  ;  —  cases  in  which  a  counterclaim  arises  out  of  the  transaction  set  forth 
by  the  plaintiff,  &c.,  781-792. 

TRESPASSES,  counterclaims  for,  785,  786. 

TRUSTEE  OF  AN  EXPRESS  TRUST,  when  he  may  sue,  171-182 ;  — pro- 
visions of  the  codes,  171 ;  — meaning  of  the  term,  172-174  ;  — judicial  inter- 
pretation, 173,  174;  —  examples,  175-178;  —  persons  "with  M'hom,  &c.,  a 
contract  is  made  for  the  benefit  of  others,"  175-177  ;  —  other  instances,  178  ; 

—  public  officers,  179; — counties,  179;  —  towns,  179; — persons  expressly 
authorized  by  statute  to  sue,  180  ;  — executors,  &c.,  181 ;  — guardians  of  in- 
fants, lunatics,  &c.,  182. 

TRUSTEES,   equitable  actions  by,  260. 

TRUSTS,  defendants  in  actions  concerning,  356-359. 

Y. 

VARIANCE  between  proofs  and  allegations,  553-564  (see  Pleading,  &c.). 

w. 

WIFE,  actions  by,  234-246  (see  Plaintiffs,  Joinder  of)  ;  — actions  against, 
318-328  (see  Defendants,  Joinder  of). 


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